TMI Blog2021 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order is, thus, without authority of law. The mandate by which an assessing authority was enabled, under Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, to revisit the value declared in the entry under section 46 of Customs Act, 1962 is limited to assessment of basic customs duty under section 12 of Customs Act, 1962. Any revision in the assessable value for determination of basic customs duty would correspondingly impact additional duties of customs too - Recourse to rules of valuation framed under the authority of section 14 of Customs Act, 1962 was, thus, precluded and the sanctity of declared retail selling price protected from being re-determined. As re-labelling of the specified goods would amount to manufacture after import, it is not that recourse was unavailable to remedy any breach of parity. The adoption of retail selling price of other re-sellers and, that too, while the impugned goods were yet to be cleared for home consumption on the presumption that the importer intended to enhance the retail selling price at the point of sale appears to be a mis-direction on the part of the original authority and the confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette, allow in respect of such like article under sub- section (2) of section 4A o Central Excise Act, 1944. Explanation. - Where on any imported article more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section. in section 3(2) of Customs Tariff Act, 1975 made way for separate and distinct assessment of additional duties of customs on such goods. Consequently, the value of the imported article shall, for assessment of additional duties of customs, be deemed to be retail sale price declared on the imported article abated to such extent as is permissible by relevant notification. 3. It is on the weave of this canvas that Learned Counsel outlines the challenge of M/s DS Chandok Sons to order-in-appeal no. 336/2008/MCH/J.C./VII(D)/2008 dated 26th December 2008 of Commissioner of Customs (Appeals), Mumbai I which upheld the decision of the original authority to demand differential duty of ₹1,08,725/- by revising the value of electronic goods imported against bill of entry no.777536/03.07.2007, declaring retail sale price of ₹5,47,378/-, to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 13/2008-C.E. (N.T.), Central Government made the rules as applicable for sub- section (4) of Section 4A w.e.f. 1-3-2008. In the cases in hand, for the period prior to 1-3-2008, the entire exercise of the Revenue in redetermining the RSP, even if RSP is not in accordance with the law, is faulty and not in accordance with the law, as prescribed manner of redetermination of RSP was brought into statute only from 1-3-2008. We find that once the Central Government has not framed the rules for redetermining the RSP in a case where the RSP declared on the package was sought to be rejected, though being empowered, authorities had no power to redetermine the RSP in any manner; more so in a manner adopted in these appeals. It is also provided in the statute, that as per sub- section (4) of Section 4A of the Act, the manner has to be prescribed only by the Central Government by rules, which came into force only from 1-3-2008, which would also indicate that the provisions of Section 4A(4) could not have been operationalised, till the manner for ascertaining the RSP was prescribed by framing the rules. In the absence of any rules for redetermination of RSP, the contentions of ld. Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f RSP and MRP in case where assessee has collected an amount in excess of the RSP/MRP declared. This re-determination has to be done, failing which the RSP/MRP cannot be revised by the authorities. We find that the C.B.E. C. vide Circular No. 334/1/2008-TRU, dated 29-2-2008 made it clear that the MRP Valuation Rules are effective from 1-3-2008. This would indicate that prior to 1-3-2008, there was no procedure to revise the MRP and demand the duty even though there being a provision under sub-section (4) of Section 4A of the Central Excise Act, 1944. In the absence of any legal machinery during the relevant period, re- determination of RSP/MRP by the Department is without any authority of law. We find that in the case of Millennium Appliances India Ltd. v. CCE, Hyderabad [2009 (248) ELT 713 (Tri. - Bang.)], this Bench on this point has held as under :- 9. Another issue involved in this case is regarding the situation that arises where there are no clear cut statutory provisions to arrive at the value. We find that strong force in the contentions raised by the appellants on the provisions of Section 4A of the Central Excise Act (as is reproduced in Para 8 hereinabove). We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure came into statute from 1-3-2008 only .. 4. Relying on the decision of the Hon ble Supreme Court in RIB Tapes (India) Pvt Ltd Another v. Union of India and Others [1986 (26) ELT 193 (SC)], he contended that section 111(m) of Customs Act, 1962 had been invoked without proper authority. He placed reliance on the decision of the Tribunal in Ajay Industrial Corporation v. Commissioner of Customs (Export Promotion), Mumbai [2006 (201) ELT 410 (Tri.-Mumbai)] on the scope for invoking of section 111 of Customs Act, 1962. 5. Narrating the background to the revision undertaken by the original authority, Learned Authorised Representative pointed out that, based on suspicion of the declared retail selling price not being comparable with prevailing market prices, enquiry was made at three different points of sale and the average thereof had been adopted as the basis of assessment. 6. The assessment of duties of central excise on the basis of retail selling price was intended to dovetail enforcement of the levy with the statutory oversight contemplated by the Standards of Weights and Measures Act, 1976 and Standards of Weights and Measures (Packaged Commodities) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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