TMI Blog2019 (5) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... s dealer also needs to be referred to the Larger Bench - necessary deletions and substitutions made - ROM disposed off. Registry is directed to place the matter before the Hon'ble President for doing the needful. - Application No. E/ROM/10156-10157/2019-DB, Appeal No. E/11752,12298/2013 - M/10172-10173/2019 - Dated:- 28-3-2019 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri V.K. Jain Ms. Dimple Gohil, Advocates for the Applicant (s) Dy. Commissioner (AR) for the Respondent(s) ORDER Per : Raju These applications for rectification of mistake have been filed by M/s. Nice Ceramics Pvt. Limited and M/s. Option Ceram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, based upon material available and in a manner consistent with principles and provisions of Section 4A of the Central Excise Act, 1944, including the principles and provisions incorporated in the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008? 4. Ld. Counsel argued that in Para 7 of the order dated 10.01.2019, the bench, after recording Para 15 of the order of Tribunal in the case of Acme Ceramics - 2014 (304) ELT 542 and 2014 (304) ELT 588 has observed as follows:- It is seen that the proposition is that if the dealers have altered the RSP then the liability should be on the dealers. We respectfully disagree with the proposition. Thereafter, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. We also find that in the cases in hand, on factual matrix also, there is a strong case in favour of the assessee i.e. manufacturer of tiles. The statements recorded of the individuals of manufacturer of the tiles, specifically state that they were declaring a RSP of ₹ 100/- on each box which were cleared by them from the factory premises, it is also stated that the said clearances are effected on exfactory basis and transportation of such boxes are in the hands of the buyers. If it is the case of the Revenue that RSP was later on changed and sold to the ultimate consumer at higher price, it was for the Department to first ascertain who has changed the said MRP. In our view, the person who has altered the RSP on the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich can be deduced from the provisions of Central Excise Act, 1944. In the absence of any evidence suggesting as to who altered the MRP on the boxes of tiles, we are of the view that the Revenue authorities cannot turn around and take a stand that the manufacturers are liable to duty, which would effectively mean that they are the persons who have altered the RSP. Yet another angle to the entire case is absence of evidence as to there being alteration of RSP; inasmuch as when the investigations were conducted by the authorities, we find that the investigating authorities have not seized a single carton of the offending goods in the Pan India operation at different dealers premises, wherein different RSP was declared. It would be beyond im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer also to the Larger Bench. 8. We find that the Hon'ble Apex Court in the case of SRD Nutrients Pvt. Limited (supra) in Para 22 observed as follows:- 22. It is rightly pointed out by the learned counsel for the appellants that the CESTAT in the earlier two judgments given in Bharat Box Factory Ltd. and Cyrus Surfactants Pvt. Ltd. held that Education Cess and Higher Education Cess [would also be refundable] along with excise duty and in view thereof, another co-ordinate Bench of CESTAT could not take a contrary view in Jindal Drugs Ltd. Judicial discipline warranted reference of the matter to the Larger Bench which it did not do. .. In view of the above, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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