2016 (1) TMI 590 - AT - Customs

Levy of CVD on MRP based or transaction value - import of LCD/LED Monitors and Television sets - demand of differential duty on the ground that the said goods were sold to industrial consumers and therefore, assessment under MRP is not applicable - Held that - It is pertinent to state that, on imported goods, and at the time of clearance, the appellants are required to affix MRP as the goods are covered under the packaged commodity and therefore in the case of branded goods, the RSP was correctly affixed by the appellant as provided by the brand owners Wipro/HCL etc. The appellant being a dealer not a manufacturer of monitors, the RSP supplied by the brand owners was affixed and there is no dispute on the fact that the monitors are packaged commodity squarely covered under the LM Act. As far as the importers concerned, the transaction is complete. It is not the case that how the brand owner is going to clear the said goods in retail sale or for personal consumption. Once the goods are covered under LMA, as a packaged commodity, they are required to be cleared on retail sale price on the packages as per the provisions of Section 4A, the assessment shall be on MRP basis. - Decision of Apex Court in Jeyanthi Food Processing Pvt. Ltd. 2007 (8) TMI 3 - Supreme Court followed. In the present case, the appellants have been clearing the goods when the MRP assessment came into existence from 2008 onwards. Therefore, the department suddenly choose to change the assessment from MRP based to transaction value from 10.05.2012 only to the goods sales made to the brand owners is not justified and particularly when the revenue itself accepted the assessment based on MRP under Notification No. 49/2008 from 24.12.2008, on the same transaction to the actual users. - demand set aside - Decided in favor of assessee.

Summary

Issues Involved:
1. Change of cause title.
2. Eligibility for exemption from Basic Customs Duty (BCD) under Notification No. 24/2004-Cus.
3. Assessment methodology for Countervailing Duty (CVD) on imported LCD/LED monitors and television sets.
4. Applicability of Maximum Retail Price (MRP) based assessment under Section 4A of the Central Excise Act, 1944.
5. Interpretation of the Legal Metrology Act (LMA) and its rules concerning industrial consumers.

Issue-Wise Detailed Analysis:

1. Change of Cause Title:
The appellant filed a miscellaneous application to change the cause title in respect of appeal No. C/41789/2014 from "M/s. Top Victory Investments Pvt. Ltd." to "M/s. TPV Technology India Pvt. Ltd." The application was allowed, and the change of cause title was approved. Consequently, all appeals pertaining to M/s. TPV Technology India Pvt. Ltd. were taken together for disposal.

2. Eligibility for Exemption from Basic Customs Duty (BCD):
The appellants, importers of LCD/LED monitors and television sets, claimed full exemption from BCD under Notification No. 24/2004-Cus dated 01.03.2005. The notification provided a "NIL" rate of duty for the relevant goods. The exemption was availed by the appellants without dispute.

3. Assessment Methodology for Countervailing Duty (CVD):
The appellants filed Bills of Entry for clearance of goods and claimed CVD based on MRP with a 35% abatement under Section 3(2) of the Customs Tariff Act (CTA) read with Section 4A of the Central Excise Act, 1944. The department issued Show Cause Notices (SCNs) alleging that the goods sold to industrial consumers should not be assessed under MRP but rather on the transaction value. The adjudicating authority confirmed the demand for differential duty, imposed penalties, and ordered reassessment under Section 3 of the Customs Act read with Section 4, denying abatement.

4. Applicability of MRP-Based Assessment:
The appellants contended that the imported monitors were packaged commodities covered under the Legal Metrology Act (LMA) and should be assessed based on MRP. They argued that the department had previously accepted MRP-based assessment and allowed abatement. The department's objection to MRP assessment arose only after the abatement percentage increased from 20% to 35% on 10.05.2012. The appellants maintained that the nature of sale (to brand owners or otherwise) should not affect the applicability of MRP-based assessment.

5. Interpretation of the Legal Metrology Act (LMA) and Its Rules:
The appellants argued that the goods were packaged commodities under the LMA and that the definition of "industrial consumer" under Rule 3 and Rule 2(bb) of the LMA did not apply to them as they were not manufacturers. They contended that the amendment to include importers and wholesale dealers in the definition of "industrial consumer" came into effect only on 14.05.2015, and thus, during the relevant period, their sales to brand owners were not covered under the industrial consumer category.

Judgment:
The Tribunal considered the submissions and perused the records. It was noted that the appellants had been regularly importing and clearing the goods on MRP-based assessment without dispute until the abatement percentage increased. The Tribunal found that once goods are covered under the LMA as packaged commodities, they should be assessed on MRP basis as per Section 4A of the Central Excise Act. The Tribunal relied on the Supreme Court's decision in Jayanthi Food Processing Pvt. Ltd., which held that the nature of sale is not relevant for the application of Section 4A.

The Tribunal concluded that the goods sold to brand owners were eligible for MRP-based assessment and abatement. The impugned orders demanding differential duty were set aside, and the penalties were also set aside. All three appeals were allowed with consequential relief.