2004 (5) TMI 69 - SC - Central Excise

Whether the appellant was required to pay excise duty at ad valorem basis or at specific rates as provided in the relevant notification? Held that - From totality of the circumstances and the nature of transaction conducted by the appellant, the view taken by the Tribunal that the stock transfer from their factory to their depots would not amount to sale of goods and actual sale of goods took place from their depots and when the goods were sold they were having printed retail price on the packages and also that the sale price charged from the buyers was the sale transaction notwithstanding there were free gifts that had been offered thus stands to reason and does not call for our interference. In the present case, earlier the appellant was paying duty at the rate of 18% ad valorem on the maximum retail price. It is only after 2-6-1998 change was sought by the appellant by not printing the price on the packed goods by removing the same to their depots from their factory in order to claim that the packed goods had not been priced at the time of their removal from the factory and gifts were offered by the appellant to indicate that the consideration in the sale transaction was not solely the price. These factors, we think, were rightly taken note of by the authorities and the penalty imposed need not be considered in the present proceedings. In the result, the appeal is dismissed.

Issues:
1. Liability to pay excise duty on color television sets.
2. Consideration for sale including free gifts.
3. Printing of retail sale price on packages.
4. Imposition of penalty under Sections 11AC and interest under Section 11AB.

Analysis:

Issue 1: Liability to pay excise duty on color television sets
The appellant contested the duty demand of Rs. 2,07,64,870.16 imposed by the Commissioner of Central Excise. The Commissioner found that goods were removed without printing the retail sale price, which was mandatory under the Standards of Weights and Measures Act, 1976. The Tribunal held that excise duty was applicable at 18% ad valorem on color television sets based on the retail sale price.

Issue 2: Consideration for sale including free gifts
The Tribunal affirmed that the sale price charged from buyers, despite free gifts offered by the appellant, was the sole consideration for the sale. The appellant's argument that gifts affected the consideration was rejected. The Tribunal emphasized that the printed retail sale price was the sole consideration for the sale, leading to the levy of duty at 18% ad valorem.

Issue 3: Printing of retail sale price on packages
The Tribunal noted that the appellant transferred goods to their depots without printing prices, intending to avoid higher duty. However, the Standards of Weights and Measures Act required a clear declaration of sale price on packages. The Tribunal concluded that the sale price was determined at the depots, making it the sole consideration for the sale.

Issue 4: Imposition of penalty under Sections 11AC and interest under Section 11AB
The Commissioner imposed a penalty equivalent to the duty payable by the appellant under Section 11AC. The Tribunal upheld this penalty due to the appellant's actions to avoid duty payment. The appellant's attempt to bypass duty payment by not printing prices before transferring goods to depots justified the penalty. The Tribunal found no reason to interfere with the penalty imposed.

In conclusion, the Supreme Court dismissed the appeal, upholding the Tribunal's decisions regarding excise duty liability, consideration for sale, printing of retail sale price, and imposition of penalty and interest. The Court found the actions of the appellant did not warrant interference and affirmed the Tribunal's findings.

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