2015 (10) TMI 1026 - AT - Central Excise

Valuation of goods - whether the additional quantity of manufactured lub. Oil cleared in the bonus/promo packs during the relevant period i.e. from 01.4.1998 to 31.3.2008, would attract duty on pro-rata basis of the MRP declared on the packs - Held that - Levy of excise duty on goods produced or manufactured in India is a Constitutional concept and could be located at entry 84 of List-I to VII Schedule to the Constitution of India. Levy and collection of the Central Excise duty, now known as CENVAT, is administered through Central Excise Act, 1944. The charging section i.e. Section 3 of the Central Excise Act,1944 lays down that there shall be a duty called CENVAT be levied on goods produced and manufactured in India and collected in the manner specified under the Act and Rules made thereunder - lubricating oils are subjected to ad valorem rate of duty. In other wards, it is the value of the goods which is relevant for determination of the quantum of duty applicable to the quantity of goods manufactured and cleared from the factory. - Prior to 01.7. 2000 the value of the goods chargeable to ad valorem rate of duty, was determined on the basis of normal whole sale price at which such goods are sold; however, after 01.7. 2000, transaction value has become the basis to ascertain the assessable value Manufactured lubricating oils has been notified under The Standards of Weights and Measures Act read with relevant Rules, accordingly, the assessable value of the said goods are to be determined as per section 4A of Central Excise Act, 1944. It is not disputed at any stage that the goods manufactured by the appellant are subjected to assessment under section 4A of Central Excise Act, 1944. The only dispute relates to determination of the value of the quantity of lub. Oil contained in the packs and consequently the duty paid by the appellant. There is no dispute about the fixation of MRP on the bonus/promo pack and no objection has been raised by the department about the compliance of the requirement of the provisions of The Standards Weights and Measures Act and the Rules made thereunder. The Appellant is at liberty to ascertain its own MRP of the goods depending on the market conditions and required to affix the same on the packing, subject to the condition that in selecting the MRP for determination of value and payment of duty, in the event more than one MRP is fixed on the pack, as prescribed in section 4A of Central Excise Act, 1944, the duty is to discharged on the highest MRP. In the event the MRP is affixed correctly and satisfies the conditions laid down under Sec.4A, then it is not open to the department to dissect the MRP, and to examine its content and arrive at a different MRP for the purpose of determination of assessable value under Sec.4A by applying the principles of valuation laid down for determination of value under Sec. 4 of CEA,1944. Accepting the contention of the revenue, if the pro rata value attributable to the additional quantity cleared as bonus quantity, in the same pack, is added to the MRP affixed on the said bonus pack, then the declared MRP will increase accordingly, which the appellant had not realized from its customers; also no such allegation has been levelled in the notice nor confirmed in the impugned order that the Appellant has collected any amount in addition to the MRP declared. No merit in the impugned order, consequently, the same is set aside - Decided in favour of assessee.

Issues Involved:
1. Applicability of excise duty on additional quantity of lubricating oil in bonus/promo packs.
2. Determination of assessable value under Section 4A of the Central Excise Act, 1944.
3. Relevance of Maximum Retail Price (MRP) in determining excise duty.
4. Applicability of previous judicial decisions to the present case.

Detailed Analysis:

1. Applicability of excise duty on additional quantity of lubricating oil in bonus/promo packs:
The appellant cleared lubricating oil in both normal packs and bonus/promo packs at the same MRP. The Revenue issued show cause notices alleging that the additional quantity in the bonus/promo packs had not suffered duty, thus duty was recoverable on the additional quantity. The Commissioner confirmed a differential excise duty of Rs. 1,30,14,474/- and imposed a penalty of equal amount under Section 11AC of the Central Excise Act, 1944, along with interest under Section 11AB.

2. Determination of assessable value under Section 4A of the Central Excise Act, 1944:
The appellant argued that during the relevant period, their products were notified under The Standards of Weights and Measures Act and assessed for valuation under Section 4A of the Central Excise Act, 1944. They contended that the MRP affixed on the packs should be the basis for determining the assessable value, and the additional quantity in the packs was cleared on payment of duty. The Revenue, however, argued that the MRP on the bonus/promo packs was not the true MRP and needed to be re-determined to include the additional quantity.

3. Relevance of Maximum Retail Price (MRP) in determining excise duty:
The Tribunal noted that if the MRP is affixed correctly and satisfies the conditions laid down under Section 4A, it is not open to the department to dissect the MRP and arrive at a different MRP for determining the assessable value. The Tribunal found that the appellant did not clear both normal and bonus packs in the same area with the same MRP, thus the declared MRP should be accepted.

4. Applicability of previous judicial decisions to the present case:
The Revenue relied on the decision of the Larger Bench in Indica Laboratories Pvt. Ltd. vs. CCE, Ahmedabad, where additional boxes of P&P Medicines bearing MRP were cleared, and duty was demanded on the additional boxes. However, the Tribunal distinguished the present case, noting that the additional quantity of lubricating oil was contained in the same package and not in separate packing bearing an MRP. The Tribunal also referred to previous decisions in Calcutta Chemicals Ltd. vs. CCE, Kol-V and Surya Food and Agro Ltd. vs. CCE, Noida, which supported the appellant's position.

Conclusion:
The Tribunal found no merit in the impugned order, set it aside, and allowed the appeal with consequential relief as per law. The Tribunal emphasized that the MRP affixed on the packs should be the basis for determining the assessable value under Section 4A, and the additional quantity in the same pack does not attract duty on a pro-rata basis. The Tribunal also noted that the department had accepted a similar order for a subsequent period, indicating consistency in the appellant's compliance with the law.

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