2010 (5) TMI 459 - AT - Central Excise

Waiver of pre-deposit - rate of duty with reference to retail sale price - records disclose that the appellants were manufacturing Gutkha pouches with weight of 2 gms. which were worth more than Rs. 2.01 each and pouches which were sold at Rs. 1.5 weighed only 1.8 gms. - Appellants were manufacturing pouches of 2 gms. with retail sale price of more than Rs. 2.01 - , it cannot be disputed that there is no concept of deemed RSP or MRP under the notification - However, notification clearly refers to the weight of each pouch for the purpose of determining the rate of duty. Once it is established that retail sale price of pouch weighing 1.8 gms. was Rs. 1.50, it is needless to say that pouch weighing 2 gms. ought to carry retail sale price of more than Rs. 2.01 per pouch in the absence of any material placed on record by the assessee disclosing its price to be at Rs. 1.50 - financial hardship and revenue interest, we consider it proper to waive 40% of the duty amount - interest and the penalty waived

Issues involved:
1. Interpretation of Notification No. 38/2007-C.E. dated 29-12-2007 for excise duty payment under Compounded Levy Scheme.
2. Calculation of excise duty liability for manufacturing Gutkha under the notification.
3. Determination of retail sale price (RSP) for goods without printed MRP.
4. Applicability of retrospective application of Notification No. 42/2008-C.E. and 30/2008-C.E.
5. Prima facie case for waiver of duty demand, interest, and penalty.

Issue 1: Interpretation of Notification No. 38/2007-C.E. for excise duty payment under Compounded Levy Scheme.
The appellants opted for payment under the Compounded Levy Scheme w.e.f. January 2008 as per the notification. The notification allows payment based on the number of packing machines installed for packing goods, with specified rates of duty per machine per month based on retail sale price. The controversy arises from the appellants' claim for benefits under this notification.

Issue 2: Calculation of excise duty liability for manufacturing Gutkha under the notification.
The department alleged that the appellants underpaid duty as they were manufacturing Gutkha weighing 2 gms. per pouch for export without printing MRP, contrary to the scheme's provisions. The duty demand was confirmed for the alleged shortfall in payment, leading to a penalty of Rs. 40 lakhs.

Issue 3: Determination of retail sale price (RSP) for goods without printed MRP.
The notification specifies duty rates based on RSP per pouch, with different slabs. The appellants were found to be manufacturing Gutkha pouches worth more than Rs. 2.01 each but paying duty applicable for lower-priced pouches, indicating underpayment.

Issue 4: Applicability of retrospective application of Notification No. 42/2008-C.E. and 30/2008-C.E.
The appellants argued against retrospective application of notifications introducing deemed MRP, asserting that such provisions were not present in the notification under which they operated. They sought a stay on the demand based on this argument.

Issue 5: Prima facie case for waiver of duty demand, interest, and penalty.
The Tribunal found that while there was no concept of deemed RSP in the notification, the appellants were liable for duty based on actual RSP. Considering financial hardship and revenue interest, the Tribunal partially allowed the appeal, waiving 40% of the duty, interest, and penalty, directing the appellants to deposit the remaining amount within 12 weeks.

This detailed analysis of the judgment provides insights into the interpretation and application of the relevant notification, the calculation of excise duty liability, the determination of RSP for goods without printed MRP, the argument against retrospective application of subsequent notifications, and the decision on the waiver of duty demand, interest, and penalty based on the circumstances of the case.

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