TMI Blog2023 (7) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the company law statute and being approved by the statutory auditors, the same cannot be questioned by the Customs department in saying that such disputed goods were sold by the appellants to their subscribers in order to be categorized under the LM Act and PC Rules for assessment of the disputed goods under the RSP basis. There is no element of sale involved in as much as the ownership of the STBs were never passed on by the appellants to the subscribers. Thus, in absence of any element of sale i.e., transfer of property in goods from one person to another, the question of affixation of RSP in the packages would not arise and if the importer choose to do so, the same cannot be questioned, in the absence of any specific statutory provisions in vogue, restricting such practice - An identical issue came up for consideration in the case of Jayanti Food Processing (P) Ltd. (supra) [ 2007 (8) TMI 3 - SUPREME COURT] and upon analysis of the statutory provisions, the Hon ble Supreme Court have held unless there is an element of sale, as contemplated in Section 2(v). Rule 6(1)(f) will not be attracted and thus such package would not be governed under the provisions of SWM (PC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Play Limited in the cause title annexed to the appeal memorandum. With the consent of both sides, the appeal is taken up for hearing and disposal today. 2. Briefly stated, the facts of the case are that the appellants are engaged interalia, in the business of providing Direct-to-Home (DTH) broadcasting services to their subscribers all across the country. For the said purpose, the appellants got license dated 24.03.2006 from the Government of India, Ministry of Information Broadcasting Services, in terms of Section 4 of the Indian Telegraph Act, 1985 and the Indian Wireless Telegraph Act, 1933. For providing the aforesaid broadcasting service, the appellant is importing Set-top Boxes (STBs) into India from various countries. Since the commencement of their business in 2006 till 31.03.2011, the appellants were providing the imported STBs to their subscribers by way of sale. Hence, on import of such STBs into India, the appellants were paying Additional Duty of Customs (CVD) on Retail Sale Price (RSP) basis in terms of the proviso to Section 3(2) of the Customs Tariff Act, 1975. However, for the period post 01.04.2011, the appellants changed their method of providing the DTH se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mumbai Bench of the Tribunal in the case of M/s Bharti Telemedia Ltd. Ors. Vs. Commissioner of Customs (Import), Nhava Sheva, reported in 2016 (331) E.L.T. 138 (Tri.-Mumbai) and the Final order No. 41185/2019 dated 28.10.2019 passed by the Chennai Bench of the Tribunal in the case of the appellants themselves. 4. Per contra, the learned Authorised Representative appearing for the Revenue reiterated the findings recorded in the impugned order and further submitted that since the RSP is statutorily required to be affixed on the package of the imported goods, the appellants have correctly done so and as such, the CVD amount has to be computed on the basis of RSP. Thus, he stated that the impugned order passed by the learned Commissioner (Appeals) is in conformity with the statutory provisions. To support such stand, he has relied upon the judgement of the Hon ble Supreme Court in the case of M/s Jayanti Food processing (P) Ltd. Vs. Commissioner of C. Ex. Rajasthan reported in 2007 (215) E.L.T. 327 (S.C.). 5. Heard both sides and examined the case records, including the written submissions filed by both sides. 6. The issue involved in this appeal for consideration by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is-- (i) the goods specified by notification in the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944, the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under subsection (2) of section 4A of that Act; or (ii) the goods specified by notification in the official gazette under section 3 read with clause (1) of Explanation III of the Schedule to the medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1995), the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement,, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article clause (2) of the said Explanation. Explanation: Where on any imported article mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consumer and the price shall be printed on the package in the manner provided therein. The said rule is extracted herein below: Maximum or Max. retail price Rs/₹ .. inclusive of all taxes or in the form MRP Rs/₹ .. incl., of all taxes after taking into account the fraction of less than fifty paisa to be rounded off to the proceeding rupees and fraction of above 50 paise and up to 95 paise to the rounded off to fifty paise; 10. On a conjoint reading of Rule 6(1)(e) ibid and Rule 2(m) ibid, it transpires that affixation of RSP under the former rule would arise only in cases/situations, where the packages are to be sold to the ultimate consumers. In other words, till the time there is no element of sale involved in transferring the title of the goods form the seller to the buyer, the requirement to affix RSP would not arise. For ascertaining the facts, whether the goods in question were sold by the appellants to their subscribers or provided to them on entrustment basis, we have examined various clauses in the agreement entered into between the appellants and subscribers. Further, we have also perused the certificate dated 14.01.2014 issued by M/s M.L. Jethva Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commodity in packaged form may be sold to the ultimate consumer. Thus, the definition of sale in Section 2(v) of the SWM Act becomes relevant. Therefore, unless there is an element of sale, as contemplated in Section 2(v). Rule 6(1)(f) will not be attracted and thus such package would not be governed under the provisions of SWM (PC) Rules which would clearly take such package out of the restricted arena of Section 4A(1) of the Act and would put it in the broader arena of Section 4 of the Act. 12. We find that the issue with regard to determination of value for levy of CVD on imported STBs is no more open for any debate, in view of the decision of the Co-ordinate Bench in the case of M/s Bharti Telemedia Ors. (supra), wherein it has been held that there is no retail sale in use of the STBs by ultimate consumers and therefore, Section 4A ibid, will not apply and valuation has to be done as per Section 4 ibid. It is also observed that CBEC has accepted the said order passed by the Tribunal and vide Circular No.1020/8/2016-CX dated 11.03.2016 has issued the instructions to the field formations for following the assessment procedures of CVD on imported STBs on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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