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2013 (9) TMI 281 - AT - Central ExciseMRP based Duty - Mis-declaration of MRP value - Confiscation of Goods - Penalty - Held that - Assesse had placed before the adjudicating authority the photographs of portion of cartons where MRP was printed - Most of these photographs are illegible - The department had failed to produce aforesaid best evidence during adjudication proceedings - Cartons of seized CTVs had not been produced - However on three of the photographs MRP printed is legible which printed MRP as seen in the photographs was tallied with the MRP declared by the assesse at the time of removal of the goods from the factory - This gives an impression that there was no mis-declaration of MRP by the assesse - order imposing penalty on the assesse on the ground of mis-declaration of MRP was not sustainable. Section 4A confers power on the Central Government to require by way of notification in the Official Gazette the manufacturer of notified goods to declare maximum retail sale price on the goods or on its package and in that case the valuation of the specified goods for the purpose of payment of excise duty would be maximum retail price declared on the goods or on the carton - the CTVs falling under Heading 85.28 was brought under the net of MRP under Section 4A vide Notification No. 50/97-C.E. The conclusion arrived at merely on the basis of price list particularly when there was no evidence on record to show that during the relevant period any CTV was sold to the ultimate customer at a price higher than the price declared by the assesse to the department or that any change or modification on printed MRP was done by the dealer/distributer in terms of those price list Decided in favor of assesse.
Issues Involved:
1. Confiscation of TV receivers. 2. Imposition and reduction of redemption fine. 3. Imposition and reduction of penalty on the appellant. 4. Alleged misdeclaration of Maximum Retail Price (MRP). Issue-wise Detailed Analysis: 1. Confiscation of TV Receivers: The appeal challenges the order of the Commissioner (Appeals) which partially accepted the appeal against the original order of the Assistant Commissioner of Central Excise, Noida. The Commissioner (Appeals) set aside the confiscation order for one TV receiver valued at Rs. 14,490/- but confirmed the confiscation of seven other receivers. The Assistant Commissioner had initially ordered the confiscation of eight CTVs valued at Rs. 1,46,100/- under Rule 9(2) read with Rule 173Q of the Central Excise Rules. 2. Imposition and Reduction of Redemption Fine: The Commissioner (Appeals) reduced the redemption fine from Rs. 40,000/- to Rs. 35,000/-. The original order by the Assistant Commissioner imposed a redemption fine of Rs. 40,000/- for the confiscated CTVs. 3. Imposition and Reduction of Penalty on the Appellant: The appellant, M/s. Panasonic AVC Network India Co. Ltd. (previously M/s. Matsushita TV & Audio (I) Ltd.), contested the penalty of Rs. 50,000/- imposed by the Commissioner (Appeals). Initially, the Assistant Commissioner had imposed a penalty of Rs. 1 lakh on the appellant and Rs. 50,000/- each on NPIL and M/s. Swagat, Fraser Road, Patna under Rule 209A. The Commissioner (Appeals) reduced the penalty on the appellant to Rs. 50,000/-. 4. Alleged Misdeclaration of Maximum Retail Price (MRP): The core issue was the alleged misdeclaration of MRP by the appellant. The Anti-Evasion Wing of the Central Excise Department conducted a search and found that the MRP printed on the cartons of CTVs was higher than the MRP declared to the department at the time of removal from the factory. The department issued a show cause notice to the appellant, alleging that the misdeclaration was intended to evade excise duty. Legal Arguments and Evidence: - The appellant argued that the department failed to produce the confiscated CTVs or their cartons with printed MRP as evidence. The appellant provided photographs of the cartons showing the MRP, which matched the declared MRP at the time of clearance from the factory. - The department relied on price circulars issued by M/s. Urvashi Sales Pvt. Ltd. and NPIL, which showed higher prices than the declared MRP. However, there was no evidence that CTVs were sold at higher prices to ultimate customers or that the printed MRP was altered by dealers/distributors. Judgment: The tribunal noted that Section 4A of the Central Excise Act, 1944 requires manufacturers to declare the MRP on goods and that the valuation for excise duty would be based on this declared MRP. The tribunal found that the department failed to produce the best evidence (cartons of seized CTVs) to prove the allegations. The photographs provided by the appellant showed that the printed MRP matched the declared MRP, indicating no misdeclaration. The tribunal concluded that the price circulars alone were insufficient to prove misdeclaration without evidence of actual sales at higher prices or alteration of MRP. Therefore, the impugned order imposing a penalty on the appellant was not sustainable. Conclusion: The appeal was accepted, and the order imposing a penalty of Rs. 50,000/- on the appellant was set aside.
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