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2019 (1) TMI 560 - AT - Central ExciseRequirement to declare Retail Sale Price (RSP) of the goods on the ceramic tiles cleared by the appellants - incorrect declaration of MRP - sole consideration for sale - Standards of Weights and Measures (Packaged Commodities) Rules, 1977 - Section 4A of the Central Excise Act - difference of opinion. Held that - This matter may be placed before the Hon ble President for constitution of a larger bench to examine the following questions of law 1) In the facts and circumstances of the case and in view of the contrary precedent decisions of tribunal in the cases of ACME (Supra) and in case of SCHNEIDER ELECTRICAL INDIA (P) LTD (Supra), is it permissible to ascertain RSP for the purpose of assessment under Section 4A of CEA, 1944, in respect of clearances made prior to issue of notification 13/2008-CE(NT) dated 1-3-2008? 2) If yes, can it be done by using best judgment method, based upon material available and in a manner consistent with principles and provisions of Section 4A of the Central Excise Act, 1944, including the principles and provisions incorporated in the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008? Matter referred to Larger Bench.
Issues Involved:
1. Legality of redetermining Retail Sale Price (RSP) for periods prior to the notification of rules under Section 4A(4) of the Central Excise Act, 1944. 2. The reliance on statements of buyers/dealers without making them co-accused or allowing cross-examination. 3. Allegations of clandestine clearances and their treatment in previous tribunal decisions. Issue-wise Detailed Analysis: 1. Legality of Redetermining RSP Prior to Notification of Rules: The core legal question was whether it is permissible to redetermine the RSP for periods before the rules were notified on 1.3.2008. The appellants argued that redetermination was not permissible as the rules were notified only on 1.3.2008, relying on the Tribunal's decision in Acme Ceramics and Suzuki Ceramics. The Tribunal in Acme Ceramics held that redetermination of RSP was not permissible before the notification of the rules. However, the respondent argued that the decision in Schneider Electrical India (P) Ltd allowed for the redetermination of RSP using reasonable/best judgment methods based on available material, even for periods prior to 1.3.2008. The Tribunal in Schneider Electrical India (P) Ltd held that the rules are procedural and can be applied retrospectively. The Tribunal noted the conflicting decisions in Acme Ceramics and Schneider Electrical India (P) Ltd and decided that the matter should be referred to a larger bench for resolution. The Tribunal emphasized that the legislative intent was clear in allowing the ascertainment of RSP even before the rules were notified, as the rules are procedural and directory in nature. 2. Reliance on Statements of Buyers/Dealers: The appellants contended that the statements of buyers/dealers, which were major evidence, could not be relied upon unless the buyers were made co-accused and cross-examined as per Section 9D of the Central Excise Act, 1944. The Tribunal did not provide a detailed analysis on this issue in the judgment but noted the appellants' arguments. 3. Allegations of Clandestine Clearances: The appellants argued that apart from the misdeclaration of RSP, there were notices involving clandestine clearances, which had been remanded earlier by the Tribunal in similar circumstances. The Tribunal did not provide a detailed analysis on this issue but noted the appellants' arguments. Conclusion: The Tribunal concluded that there were conflicting decisions on the core issue of redetermining RSP for periods prior to the notification of rules on 1.3.2008. The matter was referred to a larger bench with the following questions of law: 1. Is it permissible to ascertain RSP for the purpose of assessment under Section 4A of CEA, 1944, for clearances made prior to the notification dated 1.3.2008? 2. If yes, can it be done using the best judgment method based on available material and consistent with the principles and provisions of Section 4A of the Central Excise Act, 1944, including the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008? The decision emphasized the need for a larger bench to resolve the conflicting interpretations and provide clarity on the applicability of the rules for redetermining RSP prior to 1.3.2008.
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