2018 (7) TMI 925 - AT - Customs

Levy of additional duty (CVD) duty - Whether the payment of countervailing duty made by the appellant at the time of import of the goods, on the MRP already affixed on the goods in question is correct or they are under further legal obligation to pay the differential CVD on the allegations and findings of enhancing the MRP? - difference of opinion. Held that - As there are difference of opinion, the matter referred to Hon ble President to resolve the issue, by reference to a third Member.

Summary

Issues Involved:
1. Mis-declaration of MRP for the purpose of CVD calculation.
2. Legal implications of altering MRP post-clearance.
3. Evidentiary value of statements and documents.
4. Applicability of Central Excise duty versus CVD.
5. Validity of demand for differential CVD.
6. Confiscation and penalties imposed.

Issue-Wise Detailed Analysis:

1. Mis-declaration of MRP for the purpose of CVD calculation:
The appellant was accused of declaring a lower MRP at the time of import to evade higher CVD. The investigation revealed that the declared MRPs were significantly lower than the actual prevailing retail prices. The Director admitted this practice in his statement, indicating that the declared MRPs were not reflective of the true market prices.

2. Legal implications of altering MRP post-clearance:
The appellant argued that altering the MRP post-clearance constitutes a manufacturing process under Section 2(f)(iii) of the Central Excise Act, 1944, which should attract Central Excise duty instead of CVD. The Tribunal agreed, noting that the activity of re-labeling with a higher MRP amounts to manufacture, thus making the goods excisable and not subject to differential CVD.

3. Evidentiary value of statements and documents:
The Tribunal scrutinized the evidentiary value of the statements recorded under Section 108 of the Customs Act. The appellant contended that these statements were made under coercion and lacked corroborative evidence. The Tribunal found no direct evidence of actual affixation of higher MRP stickers on the goods, undermining the Revenue's case.

4. Applicability of Central Excise duty versus CVD:
The Tribunal emphasized that if the process of altering MRP amounts to manufacture, then the resultant product is different from the imported goods. Therefore, the duty applicable should be Central Excise duty, not CVD. This view was supported by precedents such as the Tribunal's decision in Nitin Patki Vs. CCE, Thane.

5. Validity of demand for differential CVD:
The Tribunal found that the demand for differential CVD was unsustainable due to lack of evidence and the legal provisions in place at the time. The Tribunal noted that the rules for re-determining MRP were only prescribed from 01.03.2008, and thus, could not be applied retrospectively to the period in question (April 2005 to November 2005).

6. Confiscation and penalties imposed:
The Tribunal set aside the duty confirmation and confiscation of goods for live consignments, noting that the Revenue's presumption that the appellant "may" alter the MRP post-clearance was speculative. However, the dissenting Member (Technical) argued that the mis-declaration was deliberate and intended to defraud, justifying penalties and partial allowance of the appeal.

Conclusion:
The majority decision by the Tribunal set aside the differential CVD demand, confirming that the process of altering MRP amounts to manufacture, thus attracting Central Excise duty. The dissenting opinion called for partial allowance of the appeal with penalties, highlighting the fraudulent intent behind the mis-declaration of MRP. The matter was referred to the Hon'ble President to resolve the difference of opinion.