2024 (2) TMI 727 - AT - Central Excise

Valuation - MRP based value u/s 4A or transaction value u/s 4 - Extended period of limitation - package of MCCBs cleared to industrial/institutional consumers - requirement to affix MRP on the Product MCCB as per the Standards of weights and Measures (packaged Commodities) Rules, 1977 or not for clearances effected to industrial and institutional customers through their dealers and depots - existence of machinery provisions available to determine the MRP for the product or not - list price can be adopted to determine MRP as per the Rule 4(a)(ii) of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 or not? HELD THAT - The impugned SCN has been issued on 11.05.2012 for the period from 01.04.2007 to 27.05.2008. The entire issue has arisen because of change of opinion due to differing legal interpretations. The Appellant has contended that he was under the bonafide belief that there was no requirement to affix MRP on the switchgear products sold by them industrial/institutional consumers through their dealers and these were exempted under the Packaged Commodity Rules, 1977. Moreover, it is an admitted fact that they were affixing a sticker on their own on the packages of their products that they are Specially packed for the exclusive use of an industry as a raw material or for the purpose of servicing any industry, Mine or quarry for industrial use only and not intended to be displayed for sale at a Retail Outlet. Hence, it is to be noted that there is no mis-declaration by the Appellant to intentionally evade payment of duty. The Appellants have been issuing invoices under Rule 11 of Central Excise Rules and periodically filing ER 1 returns disclosing the value adopted for the clearances and it is not the case of deliberate and wilfully evading payment of duty and hence the proviso to Section11 A(1) is not invokable and hence the penalty imposed under Section 11 Ac will not sustain. In fact the impugned order has not adduced any evidence on the above allegation and the intention to evade payment of duty due to any contraventions of the provisions of the Act has not been well brought out - the Show Cause Notice is barred by limitation and hence the demand will not survive. The appellant succeeds on limitation. The appeal is thus allowed with consequential relief.

Issues Involved:
1. Requirement to affix MRP on MCCB products for industrial/institutional customers.
2. Sustainability of demands prior to 01.03.2008 due to lack of machinery provisions to determine MRP.
3. Adoption of list price to determine MRP.
4. Sustainability of demand for the extended period of limitation.

Summary:

Issue 1: Requirement to Affix MRP on MCCB Products
The Tribunal held that the appellants are required to affix MRP on their MCCB products as per the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, even for clearances to industrial and institutional customers through their dealers and depots. This decision was based on the precedent set by the Hon'ble High Court of Bombay in the case of Larsen & Toubro Ltd., which remains binding law.

Issue 2: Sustainability of Demands Prior to 01.03.2008
The Tribunal determined that demands for the period prior to 01.03.2008 are sustainable. The assessing officer can use reasonable/best judgment means to determine the MRP based on available material consistent with Section 4A of the Central Excise Act, 1944. The Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, have retrospective application as they are procedural and directory in nature.

Issue 3: Adoption of List Price to Determine MRP
The Tribunal held that the list price (with adjustments for VAT/local taxes) of the manufacturer, which forms the basis for transactions between the manufacturer and distributor/stockist/retailer, can be adopted as the MRP under the reasonable/best judgment method before 01.03.2008 and under Section 4A read with Rule 6 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, after 01.03.2008.

Issue 4: Sustainability of Demand for Extended Period of Limitation
The Tribunal found that the extended period of limitation could not be invoked. The appellant had been marking packages as intended for industrial use and filing ER 1 returns, disclosing the value adopted for clearances. There was no deliberate intent to evade duty, and the issue arose due to differing legal interpretations. The Tribunal relied on the appellant's own case for another unit, where the extended period was not invoked, and the penalty was set aside. Consequently, the Show Cause Notice was barred by limitation, and the demand did not survive.

Conclusion:
The appeal was allowed on the grounds of limitation, with consequential relief as per the law. The decision was pronounced in open court on 14.02.2024.

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