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TMI Blog2024 (12) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... (RSP) declared on the goods less abatement stipulated in such Notification under Section 4A. The Appellant was accordingly, discharging Central Excise duty on the Retail Price declared on the goods less such abatement. 1.1 In or about March 2008, the officers of DGCEI initiated investigations into the question of authenticity of the RSP declared on the goods manufactured and cleared by the Appellant. The said Investigations culminated into issuance of Show Cause Notice dated 27-3-2010 for the period 1-3-2005 to 31-3-2009, by which it was alleged that the goods manufactured and cleared by the Appellant were sold at prices higher than the Retail Price declared on the goods based on the statements of appellant's employees, director, some dealers, builders and computer print-outs of e-mails showing cash transactions. The show cause notice dated 27-3-2010 sought to reject the RSP declared on the goods and sought to re-determine the Retail Price by taking the MRP mentioned in a Price List effective from 23-2-2005 found with one of the Dealers, Krishna Ceramic Choice, Bangalore. Based on the Retail Price re-determined as per the said Price List, the Show Cause Notice demanded differentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Determination of Retail Sale Price of Exciseable Goods) Rules 2008 were notified by Notification No. 13/2008-CE (NT) dated 1-3-2008 which prescribed the manner in which the RSP is to be ascertained in cases covered by Section 4A (4) of the Central Excise Act, 1944; since the "prescribed manner" for such ascertainment had not been provided by any Rules prior to 1-3-2008, demand of differential duty prior to 1-3-2008 is without jurisdiction. Without prejudice to the aforesaid settled legal position before 1-3-2008, it was vehemently argued that sale of goods at prices higher than the RSP declared on the goods has not been established by evidence and therefore such Retail Price cannot be re-determined for any period, whether before or after 1-3-2008, in this behalf they made detailed submissions namely that statements of dealers and builders relied upon in the show cause notice do not establish sale of goods at prices higher than the RSP declared on the goods and that statements of appellant are exculpatory; that computer print-outs of e-mails showing cash transactions are not admissible in evidence as requirements of Section 36B of the Central Excise Act 1944 not shown to have been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce mentioned in the Bills was less than the full value and equal to the amount received by Cheque. For the said reason, it is stated that, for the same kinds of Tiles, there were Bills for different prices depending on whether the full value was received in Cheque or partly by Cheque and partly by cash. What appears from these statements is that while some Tiles were sold for the full value against cheque, in other cases, part of such value was recovered in cash. It is, however, not stated that such full value was higher than the RSP declared on the goods. In our considered view, based on such statements, it cannot be concluded that Tiles were sold at prices higher than the Retail Price declared on the goods. 4.2 It is further observed that department has not recorded any statement of the buyers who purchased the Tiles from the said dealers who have stated about part of the price having been recovered by the dealers in cash. There is no statement of the buyers from such dealers to the effect that the buyers paid any amount over and above the RSP declared on the goods. There is no allegation that the RSP declared on the goods was altered and increased by the Dealers. It is therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r selling the goods at price higher than the RSP declared on the goods will be liable for action in accordance with the Standards of Weights and Measures Act and the Rules thereunder. 4.4 It is further observed that the show cause notice has placed reliance on Statement of Director of SSS Tiles Square India P. Ltd, one of the Dealers, in which he has stated that in respect of one brand (Touch Wood Brand) they had sold the Tiles at price higher than RSP; he stated, this was however, not done for other Brands; he has stated that payment to the Appellant was made of the price mentioned in the Appellant's Invoice by cheque and no cash payment was made to the Appellant. Again, in our view, based on this Statement it cannot be concluded that the RSP declared by the Appellant on the goods was not the RSP as required by Standards of Weights and Measures (Packaged Commodities) Rules, 1977. If the said dealer has sold one brand at price higher than the RSP declared on the goods, at most he would be liable for action in accordance with the Standards of Weights and Measures Act and the Rules thereunder. However, that would not make the Retail price declared on the goods to be not in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly, the reason advanced by the Commissioner that the Dealers were involved in the duty evasion for denying their cross-examination is totally misconceived. If as held by the Commissioner the dealers themselves were involved in alleged duty evasion, it is not understood as to why they were not made parties to the Show Cause notice and no proposal for penalty on them was made. This fact itself casts serious doubt on the veracity of their statements and establishes that the statements were procured from them under inducement and hence no reliance can be placed on the said statements. We are therefore of the view that remitting the matter for cross-examination will not serve any purpose. 4.7 It is seen that reliance is also placed in the Show Cause notice on Computer print outs of e-mails showing cash transactions. In this behalf, at the outset we find that it is not shown that the said alleged cash transactions represent receipt of price over and above the RSP declared on the goods. Further, in absence of it being shown that requirements of Section 36B of the Central Excise Act 1944 were satisfied in respect of the said Computer print-outs, the same are not admissible in evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through out the period from 2005 to 2009. It is settled law as laid down in CCE v Bell Granito Ceramics Ltd - 2009 (235) ELT 171, that there is no requirement under Section 4A that the MRP on each package of goods has to be identical. Accordingly, a manufacturer can affix different MRPs on different packages of the same kind of goods. If the MRP on a given package has to be rejected under Section 4A (4) and redetermined under Rule 4 of the said Rules of 2008, then with regard to every package, it would be necessary to ascertain the actual RSP in the retail market at or about the time of removal of the package in question. An MRP indicated in a Price list of Feb 2005, which itself mentions that Prices therein are subject to revision without prior notice and ruling prices will be charged at the time of dispatch cannot be applied across the board for clearances made from 2005 to 2009. 4.10 It is further noticed that the Larger Bench of this tribunal in the case of Ocean Ceramics Ltd v CCE-2024 (1) TMI 1280-CESTAT-AHMEDABAD-LB, has held that in absence of the manner of ascertainment of RSP having being prescribed by Rules under Section 4A (4) for the period prior to 1-3-2008, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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