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TMI Blog2019 (5) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... referring the matter to the Hon'ble President for constitution of Larger Bench. 2. Ld. Counsel pointed out that this ROM application is with reference to order of the Tribunal dated 10.01.2019. He pointed out that the said order is an interim order referring certain issues to Hon'ble President for constitution of Larger Bench. He relied upon the decision of Hon'ble Bombay High Court in the case of Suzlon Infrastructure Limited vs. UOI - 2009 (243) ELT 497 (Bom.) to assert that such matter can be considered by Tribunal in Rectification/ Review jurisdiction. Nothing to the contrary was produced by the Revenue. 3. Ld. Counsel for the applicant argued that the following question of law has been referred to the Larger Bench in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bench to differ or overrule the findings of the coordinate bench. He relied on the decision of the Hon'ble Apex Court in the case of SRD Nutrients Pvt. Limited - 2017 (355) ELT 481 (SC) to observe that in such circumstance, following judicial discipline the matter should have been referred to the Larger Bench. 5. Ld. AR relied on the impugned order. 6. We have considered the submissions made by both sides. The issues referred to Larger Bench in the instant case are:- (a) If the RSP for assessment under Section 4A can be revised prior to issue of Notification No. 13/2008-CE (NT) dated 01.03.2008, which notified Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008. (b) If the retail sale price h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4A of the Act would be considered as a manufactured product. As stated hereinabove, it is the case of the Revenue that there was an alteration of the MRP, there is nothing on record which indicates that the appellant-manufacturers herein are the persons who have altered the MRP in godown/places of the dealers. The dealers whose statements were recorded by the Revenue authorities state that they have sold the goods at a higher price than the price at which goods were cleared from factory premises of the appellants. We are unable to understand the investigating authorities' mind, as during the course of investigation there is a specific admission of the dealers that they have sold the goods at higher MRP than the declared MRP; no questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise duty based upon redetermined RSP, for the period prior to 1-3-2008. 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. ....... ............. ......." Thus while the decision in the case of Acme Ceramics (supra) holds the dealer liable to pay duty, the order dated 10.01.2019 holds that appellants can be fastened with the liability in the facts and circumstances. The order dated 10.01.2019 highlights that in the circumstances where prima-facie the alteration of RSP was done by the dealer in collusion /connivance and at the behest of the manufacturer the liability to duty can be fastened as the manufacturer. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alers have altered the RSP then the liability should be on the dealers. We respectfully disagree with the proposition." The following may be substituted:- "Thus, in view the fact that, prima-facie, alteration in RSP happened fraudulently at the behest of the appellant and therefore, the appellants should be affixed with the liability to pay Central Excise duty as manufacturers. However, since this view differs from the view taken by coordinate bench in the case of Acme Ceramics (supra), the matter needs to be referred to the Larger Bench for resolution of conflict." 9. In Para 9 of the order dated 10.01.2019, after sub-clause (2), the following clause may be added:- "(3) In the facts and circumstances of the case, if the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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