2016 (1) TMI 196 - AT - Central Excise

Valuation - clearance of pan masala with weights 4 gms, 2 gms and 2 gms in pouches - Clearance of excess quantity of pouches - In terms of this Section, duty is payable on the basis of MRP less the amount of abatement in terms of Section 4(2) - Held that - The charge of clandestine removal does not even sustain for the reason that there is no evidence to show that any amount was received by the appellant over and above the declared MRP. The adjudicating authority has completely overlooked the fact of payment of duty under Section 4A for reasons which are not forthcoming from the records. The Commissioner (Appeals) although referred to appellant s plea of payment of duty in terms of Section 4A, however, proceeds on a different track by referring to Notifications 27/1997 and 16/1998 which fixes tariff value for pan masala. The Commissioner (Appeals) does not explain why the assessment should not be done in terms of Section 4A - In these circumstances, the benefit must go to the appellant. - Decided in favour of assessee.

Summary

Issues:
- Duty liability on excess quantity of pan masala cleared
- Penalty imposition under Section 11AC of the Central Excise Act, 1944
- Assessment of duty under Section 4A based on MRP less abatement
- Commissioner (Appeals) decision regarding the assessment method

Duty Liability on Excess Quantity:
The case involved the manufacture of pan masala with declared weights and MRPs. The appellant was found to have pouches containing more than the declared weight, leading to a duty demand under Section 11A of the Central Excise Act, 1944. The Commissioner (Appeals) upheld the duty demand and penalties, except for the penalty on the Managing Director. However, the Tribunal noted that the goods were chargeable to duty under Section 4A based on MRP less abatement. The excess weight in the pouches did not impact the declared MRP for duty calculation purposes. The Tribunal emphasized that there was no evidence of clandestine removal or receipt of excess amounts above the declared MRP. The adjudicating authority's oversight of duty payment under Section 4A was highlighted, leading to the decision in favor of the appellant.

Penalty Imposition under Section 11AC:
The penalty under Section 11AC of the Central Excise Act, 1944 was imposed on the appellant, which was upheld by the Commissioner (Appeals) except for the penalty on the Managing Director. The Tribunal did not delve into the penalty aspect in detail as the main focus was on the duty liability and assessment method under Section 4A.

Assessment of Duty under Section 4A:
The key contention revolved around the assessment of duty on the pan masala under Section 4A based on MRP less abatement. The Tribunal emphasized that duty was payable on the declared MRP less the abatement amount as per Notification 13/2002. The Tribunal highlighted that the duty was paid based on the declared MRP, and the excess weight in the pouches did not impact the duty calculation. The Commissioner (Appeals) referenced other notifications but did not provide a clear rationale for deviating from the assessment under Section 4A. Ultimately, the Tribunal ruled in favor of the appellant, emphasizing that the benefit should be granted to them based on the duty payment method under Section 4A.

Commissioner (Appeals) Decision Regarding Assessment Method:
The Commissioner (Appeals) upheld the duty demand under the proviso to Section 11A(1) and penalties, except for the penalty on the Managing Director. However, the Commissioner's decision was overturned by the Tribunal due to the failure to explain why the assessment was not conducted under Section 4A. The Tribunal emphasized that the duty payment method under Section 4A should have been applied, leading to the setting aside of the impugned order.

This detailed analysis of the judgment highlights the issues of duty liability, penalty imposition, assessment under Section 4A, and the Commissioner (Appeals) decision, providing a comprehensive overview of the case.