2013 (4) TMI 24 - AT - Central Excise

MRP based duty or Duty based on Tariff Rate - ordinary Portland cement - export to Nepal - as per the department since there was no requirement to print MRP in respect of the packaged cement exported to Nepal and as such there was no MRP, the appellants were required to pay duty on this cement at the tariff rate - Held that - In terms of third proviso to Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., where the retail sale price of the goods are not required to be declared under SWM Rules, 1977 and are not declared, the duty shall be determined as in the case of goods cleared in other than packaged form. Since, in this case the goods had been cleared for export to Nepal and as such there was no requirement to declare the MRP on the bags of the cement in accordance with the provisions of SWM Rules, 1977, the cement would have to be treated as other than packaged form even though the MRP had been printed and accordingly, the same would be covered by Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., where the duty is 14% adv. or Rs. 400/- per M.T. whichever is higher. There is no dispute that if the duty is charged at the rate prescribed in Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., there would be no short payment. As the same prima facie view had been taken by the Tribunal in the appellant s own case for the previous period in the Stay Order dated 24-1-2012 by which the requirement of pre-deposit had been waived. - stay granted.

Summary

Issues:
Rate of duty on clearances of ordinary Portland cement for export to Nepal - Interpretation of Notification No. 4/2006-C.E. - Requirement to print MRP on cement bags for export - Applicability of duty rates.

Analysis:
1. The dispute in this case revolves around the rate of duty on the clearances of ordinary Portland cement for export to Nepal by the units of M/s. Jay Prakash Associates Ltd. The key issue is whether the duty should be charged based on the tariff rate or as per the provisions of Notification No. 4/2006-C.E. The appellant had printed the MRP on the cement bags cleared for export to Nepal, even though there was no legal requirement to do so. The department contended that since there was no requirement to print MRP for export consignments, duty should be charged at the tariff rate.

2. The Commissioner, Central Excise, Bhopal, adjudicated on two show cause notices and confirmed duty demands for the appellants. The Commissioner refrained from imposing any penalty on the appellants. The appellants filed appeals against these orders, challenging the duty demands imposed.

3. During the hearing, the appellant's counsel argued that even if the cement bags cleared for export are considered "other than in packaged form," the duty rate prescribed in Notification No. 4/2006-C.E. should apply. The counsel contended that the benefit of the notification cannot be denied based solely on the presence of MRP on the bags, especially when there was no legal requirement for it. The appellant sought a waiver from the pre-deposit of duty demand and interest, stating a strong prima facie case in their favor.

4. The Joint CDR opposed the stay application, arguing that since there was no requirement to print MRP for export consignments, duty should be charged at the tariff rate. The department contended that there was no basis for waiving the pre-deposit requirement.

5. The Tribunal analyzed the submissions and the relevant provisions. It noted that for goods cleared for export, there is no requirement to print MRP as per the SWM Act, 1976. The Tribunal interpreted the provisions of Notification No. 4/2006-C.E., distinguishing between goods cleared in packaged form and those cleared "other than packaged form." Considering the absence of MRP requirement for export consignments, the Tribunal held that the cement should be treated as "other than packaged form." Therefore, the duty rate under Sl. No. 1C of the notification applied, ensuring no short payment.

6. The Tribunal found merit in the appellant's argument, citing a previous stay order in their favor. It concluded that the appellants had a prima facie case, and therefore, waived the pre-deposit of duty demand and interest for the appeals. The recovery of duty was stayed until the final disposal of the appeals.

This detailed analysis of the judgment highlights the key issues, arguments presented, and the Tribunal's interpretation of the relevant legal provisions, resulting in the decision to waive the pre-deposit requirement for the appeals.