9911796707
TMI Blog2023 (3) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.10.2012 Duty Demand 46,59,694/- 47,78,100/- 8,65,300/- 3,71,439/- Penalty Equal amount of penalty imposed 2.1 Appellant, is a warehouse which receives imported and domestic parts of automobile. Here appellants unpack the package, undertake the activity of quality checking and repacking. Thereafter, the appellants affix another label on the packages of the parts indicating the address of Panvel warehouse. 2.2 Undisputedly all the goods so manufactured by the appellants are covered under the Standards of Weights and Measures Act, 1976 & notified vide Notification No. 11/2006- CE dated 29.5.2006 under Central Excise Act, 1944 for assessment under Section 4A of the Central Excise Act, 1944. 2.3 The appellants avail credit of CVD & SAD paid on imported goods. 2.4 Appellants were paying CVD on the basis on MRP actually declared and affixed on the packages at the time of importation till 17.3.2010. However, from 18.3.2010 onwards, as directed by Customs, the appellants paid CVD on an amount which is 2.5 times the FOB value less abatement' in cases where the MRP actually declared on the package is less than '2.5 times the FOB value'. 2.5 The appellants availed cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order. 4.1 We have considered the impugned order along with the submissions made in the appeals and during the course of the argument. 4.2 Undisputedly the goods cleared from the premises of the appellant are cleared after undergoing the manufacturing process as defined in terms of Section 2f(iii) of the Central Excise Act, 1944, reproduced below: 2 (f) "manufacture" includes any process, - i. ..... ii. ..... iii. Which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer and the word ...... 4.3 The goods which are cleared from the warehouse are notified under the Third Schedule and attract the mischief of section 2 f(iii). They are also notified in notification issued under Section 4A of the Central Excise Act, 1944 and are required to be cleared on the payment of the duty determined on the value arrived after deducting abatement as specified from the declared MRP. In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice was adjudicated vide order dated 27.8.2014 and dropped the demand raised in the show cause notice, observing as follows: "18. Further; I find that the SCN proceeds to demand the differential duty on the ground that the MRP declared on the bill of entry at the time of import and that declared on the packages at the time of their clearance from the factory is different. This is clear from para 6 of the SCN. This is also clear from the annexure to the SCN showing calculation of differential duty. The said annexure calculates the differential duty on the basis of assessable value arrived at on the basis of MRP declared in the Bills of Entry. I find that there is no allegation in the SCN that the MRP declared on the package of the goods at the time of their importation is different than the MRP declared on the package at the time of clearance from the factory. I find that the explanation to Section 3(2)(ii) of the Customs Tariff Act, 1975 stipulates that: "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." I also find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sale Price' appear, they are either preceded or succeeded by words 'declared on the package' or 'declared on the goods'. I also find that wherever the said section makes reference to alteration of MRP or mentioning of more than one MRP, it talks about such alteration or mention of MRP on the package of the goods and not alteration or mention of MRP on any document. From this it is very clear to me that the Central Excise Duty is leviable on the goods falling under section 4A of the Central Excise Act, 1944 with respect to the MRP declared on the packages at the time of their clearance from the factory and not with respect to that declared on the bill of entry at the time of their importation. I find that since the noticee has paid the Central Excise Duty on the basis of MRP declared on the package of the goods at the time of their removal from Panvel warehouse, they are not liable to pay any differential duty. In view of the above, I am of the view that the demand raised in the impugned SCN is no sustainable in the eyes of the law and therefore in am inclined to drop the same. Since the demand itself is liable to be set aside, there is no question of any penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
