2011 (6) TMI 523 - AT - Customs

Valuation of imported goods - MRP based valuation or transaction value - CVD - Appellants themselves have declared the goods in Bill of Entry in numbers/pcs. They have also declared the goods in Bill of Entry as RSP items. Even in invoices goods are mentioned in pcs and unit price is also mentioned as per piece and not by weight - Held that - lipsticks are not exempted under Rule 34(1)(b) of the Standards of Weights & Measures (PC) Rules as the goods are not sold on weight basis but in pieces. Appeal filed by the appellant is accordingly dismissed.

Summary

Issues:
1. Interpretation of Section 4A of the Central Excise Act for charging CVD on imported goods.
2. Applicability of Rule 34(1)(b) of Standards of Weights & Measures (Packaged Commodities) Rules to lipsticks sold by weight.
3. Exemption under Rule 34 for goods sold by weight or measure.

Analysis:
1. The appeal involved a dispute regarding the charging of Countervailing Duty (CVD) on imported lipsticks by M/s. Hindustan Lever Ltd. The appellant argued that CVD should be based on the transaction value under Section 4 of the Central Excise Act, not on the Maximum Retail Price (MRP) under Section 4A, as the lipsticks were not subject to the Standards of Weight Measure Act. However, the Additional Commissioner of Customs disagreed, stating that MRP should be used for assessment if the goods are not sold by weight. The Commissioner of Customs (Appeals) upheld this decision, leading to the appeal.

2. The appellant contended that the lipsticks should be exempt from the application of Section 4A as they are sold based on weight, not on a piece basis. They relied on Rule 34(1)(b) of the Standards of Weights & Measures (Packaged Commodities) Rules, which exempts goods sold by weight or measure if the net weight is 20 grams or less. However, both the lower authorities found that the lipsticks were not exempt under this rule as they were sold in pieces, not by weight, as declared in the Bill of Entry and invoices.

3. The Tribunal analyzed previous decisions cited by the appellant to support their case, such as Modern High Tech India and Swan Sweets Pvt. Ltd., which dealt with goods exempted from MRP based on weight or measure. However, the Tribunal distinguished these cases from the present situation, emphasizing that the lipsticks were sold in pieces, not by weight. The Tribunal concluded that the appellant's case did not align with the rulings of the cited cases and upheld the orders of the lower authorities, ultimately dismissing the appeal.

In conclusion, the Tribunal dismissed the appeal by M/s. Hindustan Lever Ltd., affirming the decision of the lower authorities regarding the assessment of CVD on imported lipsticks based on MRP and the inapplicability of Rule 34(1)(b) exemption due to the sale of lipsticks in pieces, not by weight.