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TMI Blog2010 (11) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant was being informed to them by the MEL from time to time. 1.2 On 10-12-98, on receipt of an intelligence that the appellants are evading central excise duty by adopting various modus operandi including mis-declaration of MRP, the officers of Directorate General of Central Excise Intelligence (DGCEI) searched the premises of the appellants and seized various records. In course of stock taking, 141 CTVs involving central excise duty of Rs. 1,54,575/- were found short vis-a-vis the balance recorded in the RG-I Register. Shri Ashok Chawla, Sr. Manager (Finance & Accounts) of the appellant company admitted the shortage of 141 CTVs and debited the duty on the spot in their PLA and RG-23 A Part-II Account. 1.3 In follow-up action, the officers also searched the registered office of the Appellant Company/MEL at GA-2, B-I Extension, Mohan Cooperative Indl. Estate, Badarpur, New Delhi, godown of OSL/MEL at B-136, A-76, Sawroop Nagar, New Delhi and premises of M/s. Shyam Lal Kishan Lal, Sadar Bazar, Delhi Cant, the distributor of Onida CTVs and seized some documents. Inquiries were also caused with the other distributor and dealers of Onida CTVs in Delhi to asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The statements of some of the distributors of Onida CTVs were also recorded wherein they stated that they were getting the CTVs from MEL at distributor's price and selling the same to their dealers at dealer's price and that they never received any old CTVs from their dealers nor they have sent old CTV on this account to MEL. They also stated that they never sold the CTVs under the exchange programme. From the above it appeared that though the appellant-company had decreased the MRP declared to the Central Excise in respect of certain models from May, 1998 under so called such exchange scheme, but there was no exchange and the TVs were still being sold at the higher price while the lower price had been declared to the Central Excise Department. 1.5 In view of the above facts, a show cause notice dated 28-10-99 was issued to the appellant-company for - (a) recovery of short paid duty of Rs. 17,04,388/- in respect of certain models of CTVs (20JX, 140N, 14TVES, 14ZC, 14ZD, 14ZE in respect of which MRPs were alleged to have been misdeclared; (b) recovery of central excise duty amounting to Rs. 1,54,575.54 on the CTVs found short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, MEL and Shri G.K. Mittal, Director of the appellant company against the above order of the Joint Commissioner were disposed of by the CCE (Appeals) by common order-in-appeal 212-14/CE/APPL/Noida/2004 dated 23-7-2004 by which the adjudicating authority's order was upheld and the appeals were rejected. It is against this order of the Commissioner of Central Excise (Appeals) that this appeal has been filed by the appellant-company. 2. Heard both the sides. 2.1 Shri R. Santhanam, Advocate, ld. Counsel for the appellant company pleaded that the models of CTVs in respect of which the duty demand has been raised, are not the models which are sold by the appellants, as these models are manufactured for MEL, are marketed by the MEL and the MRP declared to the Department for the purpose of Section 4A of the Central Excise Act is the one, which is communicated to them by MEL, that the appellant-company and the MEL can not be treated as related persons and the concept of 'related person' is not relevant for the purpose of Section 4A, that the appellant company had no knowledge as to whether the MRP to be declared communicated to them by the MEL was the actual MRP or not, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, the appellant's plea that there was no shortage is totally un-acceptable. Therefore, we do not find any infirmity in the impugned order upholding the duty demand of Rs. 1,54,575/- in respect of 141 short found goods at the time of stock taking. 4. As regards the duty demand of Rs. 17,04,388/- on account of mis- declaration of MRP, we find that the Department's allegation is that during the period of dispute, the appellant company in respect of the certain brands of CTVs manufactured by them for MEL reduced the declared MRP under an exchange scheme, but those models of CTVs were actually sold at the usual higher MRPs without receiving any old TVs in exchange. The evidence relied upon by the Department in support of this allegation is -(a) statement dated 3-5-99 of Shri Gurmeet Singh, Branch Manager", MEL, Ghaziabad, wherein he admitted that CTVs in question were sold to the ultimate consumers at prices, which were higher than the declared MRP for exchange models and actually were old TVs were received in exchange scheme; (b) statement dated 19-2-99 of Shri Vijay Joshi, Vice President and statement dated 9-7-99 of Sh. Ashok Chawla on behalf of Shri G.K. Mittal, Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no provision in Section 4A for enhancing the declared MRP, if the same was not found to be correct, it does not mean that during that period, an assessee coming within the purview of Section 4A was free to declare any false MRP and evade the duty, as it is well settled law that nobody can be allowed benefit from his wrong doing. 4.1 The appellant have cited Hon'ble Supreme Court's judgment in case of ITC Ltd. v. UOI (supra), but this judgement is not applicable to the facts of this case and in this case the officers of the appellant company (the manufacturer), MEL (brand name owner and marketing the CTVs manufactured by the appellant company), distributors and dealers have categorically admitted that in respect of certain models of CTVs through a lower MRP had been declared under exchange scheme actually those models were sold to consumers at the usual higher MRP without any exchange. 5. In view of the above, we are of the view that duty demand of Rs. 17,04,388/- and penalty on this count on the appellant company and others has been rightly upheld. 6. In view of the above discussions, we do not find any infirmity in the impugned order. The appeals are dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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