2015 (10) TMI 32 - AT - Customs

Levy of CVD on MRP basis - Determination of correct RSP - Confiscation of goods - whether the goods cleared in the past under Bills of Entry as detailed in Annexure 1 to the show cause notice need re-determination of RSP and their leviability to confiscation - Enhancement of penalty - Held that - Goods are imported in package form and leviable to duty on RSP based assessment as stickers of higher MRP were found affixed on seized goods in the godowns. For not declaring the MRP correctly, the goods are liable to confiscation under Section 111(m) and duty is required to be paid on the basis of MRP declared in the price list. The fact that a certificate is produced from the CA much later to the effect that goods were sold at lower prices makes no material difference because the MRP declared in the price list and the stickers is higher and the partner admitted at the time of import that they are selling the goods at the list price. The proviso to Section 3(2) of Customs Tariff Act unambiguously states that in the case of such goods, the retail sale price has to be declared on the package as required under the Standards of Weights and Measures Act (SWM). The retail sale price is required to be declared in the case of imported goods which are specified under Section 4(A)(1) of the Central Excise Act. And the retail price which the respondent was required to declare on the goods packages is the maximum price at which they may be sold to the ultimate consumer and which is termed as maximum retail price (MRP). The goods also being notified under Notification No. 49/08-CE; therefore both the conditions specified in proviso to Section 3(2) of the CTA are met and goods will be leviable to RSP based assessment. Rule 6(1) of the SWM(PC) Rules, states that (i) Every package shall bear their own owned label securely affixed thereto defined plain and conspicuous declaration made in accordance with the provisions of this Chapter as to (a) name and address of the manufacturer (f) the retail sale price of the package. In the case of goods seized from the container as well as goods found in the godown, the respondent have violated the provisions of the SWM(PC) Rules read with Section 3(2) of the CTA requiring importer to affix the label at the time of import. As those labels were not affixed as well as fact that RSP was not declared on the goods makes the goods liable to confiscation under Section 111(d) of the Customs Act and leviable to duty on MRP basis. Retail price which the appellant was required to declare on the goods packages is the maximum price at which they may be sold to the ultimate consumer and which is termed as maximum retail price (MRP). The facts in the case of ABB (supra) are different. There the facts were that the goods, namely electrical items, were cleared without declaring the RSP, and actually the goods were cleared by paying CVD in terms of Section 4 of the Central Excise Act, 1944 by misclassifying the goods. In the present case the facts are different. Here the MRP was wrongly declared in the Bill of Entry. After clearance form Customs, the appellants sold the goods at prices which are different from the MRP declared by them. - even if there are no machinery provisions laid down in Section 3(2) of the CTA and Section 4A(4) of the Central Excise Act, it cannot be concluded that Section 3(2) of the Customs Tariff Act will become ineffective and the law rendered otiose. - Decided in favour of Revenue.

Summary

Issues Involved:
1. Determination of correct RSP (Retail Sale Price) for goods seized from the container and their liability to confiscation.
2. Re-determination of RSP for goods cleared in the past under Bills of Entry and their liability to confiscation.
3. Legality of the Commissioner (Appeals) enhancing the penalty without giving notice to the respondent.

Detailed Analysis:

1. Determination of Correct RSP for Goods Seized from the Container and Their Liability to Confiscation:
The Customs' Marine and Preventive wing intercepted a container on 5th June 2010 and found discrepancies between the MRP declared in the Bill of Entry and the price list obtained at the store. The respondent's partner admitted that MRP stickers were sent separately and affixed at their godown. The investigation revealed that the actual selling price was higher than the declared MRP, leading to the seizure of goods and packaging cartons. The adjudicating authority confiscated the goods under Section 111(m) of the Customs Act and imposed a fine and duty based on the re-determined RSP. The Commissioner (Appeals) upheld the confiscation but reduced the redemption fine and demand. The Tribunal found that the goods were imported in package form and liable to duty based on RSP as the MRP declared was incorrect. The goods were thus liable to confiscation under Section 111(m) for not declaring the correct MRP.

2. Re-determination of RSP for Goods Cleared in the Past Under Bills of Entry and Their Liability to Confiscation:
The investigation showed that goods in the godown had higher MRP stickers than those declared at the time of import. The Tribunal noted that the goods were assessable to CVD based on RSP/MRP under Section 4A of the Central Excise Act. The goods were also notified under Notification No. 49/08-CE, meeting the conditions for RSP-based assessment. The Tribunal rejected the respondent's plea that the goods seized from the godown were not the same as those covered by the Bills of Entry, as the modus operandi was confirmed by various statements and evidence. The goods were thus liable to confiscation under Section 111(d) for failing to declare the correct MRP and were subject to duty based on actual MRP.

3. Legality of the Commissioner (Appeals) Enhancing the Penalty Without Giving Notice to the Respondent:
The Tribunal found that Section 114A mandates a penalty equal to the duty in cases of suppression of facts. Therefore, the enhancement of the penalty by the Commissioner (Appeals) was justified as per the law laid down under Section 114A. The Tribunal also addressed the respondent's argument that Central Excise Rules for re-determination of RSP became applicable only from 01-03-2008, stating that the proviso to Section 3(2) of the Customs Tariff Act requires the declaration of retail sale price on the package, and the MRP declared must be the maximum price at which the goods may be sold to the ultimate consumer.

Conclusion:
The Tribunal allowed the appeal of Revenue, confirming the liability of the goods to confiscation under Sections 111(m) and 111(d) of the Customs Act and the duty based on the correct MRP. The cross objections were disposed of accordingly.