2017 (3) TMI 555 - AT - Central Excise

Valuation - SSI unit - clearances exceeding exemption limit - whether the paints supplied by the respondent would require mandatory affixation of MRP or whether they are exempted from such requirement and in consequence, whether their assessment for levy of excise duty will be governed by Section 4A or Section 4 ibid? - Held that - it clearly emerges that the packages cleared by the respondent were stenciled with the markings BHEL USE ONLY and BHEL APPROVED. In this regard, it is observed that Rule 34 of the said Rules provides exemptions from affixture of MRP on packages which have been specifically packed not only for exclusive use of any industry as a raw material but also a commodity for the purpose of servicing any industry etc. - The said paints are utilized exclusively by BHEL or their ancillary units for use on their final products (boilers etc.) as anti-erosion treatment for use on their original equipment manufactured by them. This being the case, the impugned goods are exempt from affixation of M.R.P in view of the special provisions of Rule 34 of the Standard Weights and Measures (PC) Rules,1977, especially since all conditionalities of the said Rule are satisfied. Rule 34 ibid being a special provision, will then override the other general provisions of the said Rules - When the statute has prescribed any special provisions excluding the application of other general provision therein, that special provision will prevail over the general provision - the valuation of the impugned goods would then not be under Section 4A of the Central Excise Act but under Section 4 only. In view of the discussions, and also keeping in mind that there was some genuine confusion concerning MRP assessment under Section 4A of the Act in the initial stages after its introduction, there shall be no penalty on the respondent-assessee. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Applicability of Section 4A vs. Section 4 of the Central Excise Act, 1944 for valuation of excisable goods.
2. Requirement of affixing MRP on packages supplied to industrial consumers.
3. Validity of duty demand and interest liability.
4. Imposition of penalty under Rule 25 of the Central Excise Rules, 1944 read with Section 11AC of the Act.

Detailed Analysis:

1. Applicability of Section 4A vs. Section 4 of the Central Excise Act, 1944 for valuation of excisable goods:
The core issue in the appeal was whether the paints supplied by the respondent required mandatory affixation of MRP and whether their assessment for levy of excise duty should be governed by Section 4A or Section 4 of the Central Excise Act, 1944. The Tribunal noted that under Section 4A, the valuation of excisable goods is based on the retail sale price declared on the goods, less any amount of abatement prescribed by Notification. However, exemptions under Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, exclude certain packages from the requirement of affixing MRP. The Tribunal concluded that the paints supplied to BHEL and BIDASS were for exclusive industrial use and not for retail sale, thus falling under the exemptions provided by Rule 34. Consequently, the valuation should be under Section 4 and not Section 4A.

2. Requirement of affixing MRP on packages supplied to industrial consumers:
The Tribunal examined Rule 34(a) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, which exempts packages marked for exclusive industrial use from the requirement of affixing MRP. The facts established that the packages were marked "BHEL USE ONLY" and "BHEL APPROVED," indicating exclusive use by BHEL and its ancillary units. The Tribunal found that these markings and the nature of the transactions confirmed that the goods were not intended for retail sale, thus exempting them from the MRP requirement.

3. Validity of duty demand and interest liability:
The original authority had demanded a duty of ?14,15,582/- under Section 11A(2) of the Central Excise Act, along with interest under Section 11AB. The Tribunal upheld this demand, stating that the respondent's goods were not subject to MRP-based valuation under Section 4A but should be assessed under Section 4. The Tribunal noted that the respondent's reliance on letters from the jurisdictional Superintendent of Central Excise did not absolve them of their duty liability, as these letters were issued shortly after MRP assessment under Section 4A came into force and might not have considered all relevant facts.

4. Imposition of penalty under Rule 25 of the Central Excise Rules, 1944 read with Section 11AC of the Act:
The Tribunal acknowledged the respondent's argument that they were misled by the Superintendent's letters regarding the applicability of MRP-based valuation. Given the initial confusion surrounding MRP assessment under Section 4A, the Tribunal decided not to impose any penalty on the respondent. The Tribunal emphasized that while the duty liability was valid, the misleading advice received by the respondent served as a mitigating factor against the imposition of penalties.

Conclusion:
The Tribunal allowed the departmental appeal, setting aside the Commissioner (Appeals)' order and restoring the original order to the extent of confirming the duty demand of ?14,15,582/- under Section 11A(2) of the Central Excise Act, along with interest under Section 11AB. However, no penalty was imposed on the respondent due to the genuine confusion regarding MRP assessment. The cross-objections filed by the respondent were also disposed of in view of the appeal's disposal.