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TMI Blog2014 (8) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustry and valuation of such ceramic titles was correctly covered under section 4 of the Act as per law laid down in Trishul Research case referred to supra. - Decided against the assessee. Extended period of limitation - Held that:- Valuation was done by appellant under section 4A with the sole intention to evade payment of duty as is revealed by the fact situation of the case. Suppressing of material facts was manifested resulting in invokation of extended period in terms of first proviso to section 11A of the Act. Once suppression was manifested, appellant was liable to the imposition of penalty and plea of time bar fails - Commissioner has rightly arrived at the conclusion that assessment of goods supplied to bulk buyers should be done under section 4 and not under section 4A. Invokation of extended period of limitation and consequent imposition of penalty under section 11AC is justified - Decided against assessee. - Appeal No.E/1434/2006-Ex - FINAL ORDER NO.53154/2014 - Dated:- 8-8-2014 - Mr. D.N. Panda and Mr.Manmohan Singh, JJ. For the Appellant : Shri B.L. Narsimhan, Advocate For the Respondent : Ms. Shweta Bector, AR JUDGEMENT PER: MANMOHAN SING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 4A of the Central Excise Act, 1944 on contracted price under section 4 thereof. But appellant s defence was that once they have declared retail sale price of such goods duty is leviable under section 4A of Central Excise Act, 1944 but not under section 4 of the said Act in view of the provisions of sub-section (2) of section 4A. Section 4 A (1) (2) reads as under:- (1) The Central Government may, by notification in the Official Gazette specify any goods, in relation to which it is required under the provisions of Standards of Weights and Measures Act, 1976 (60 of 1976) or the Rules made thereunder or under any other law for the time being in force to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under Sub-Section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in Section 4, such value shall be deemed to be retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these category of buyers are covered by provisions of section 4A. 6. They also contended that for the purpose of valuation on the basis of MRP, two conditions are to be satisfied simultaneously i.e. (i) they should be notified for the purpose of section 4A and (ii) there should be requirement for affixing MRP on them. Notification No.18/1998-CE (NT) dated 2.6.1998 and 52/2000-CE (NT) dated 16.11.2000 have been issued under section 4A of the Central Excise Act, 1944 in respect of goods to be sold under MRP. They contended that the ceramic titles manufactured by the appellants were classified under sub-heading 6905.10/6906.10 of the Central Excise Tariff Act, 1975 and were notified goods for valuation on the basis of MRP. Thus, the valuation of goods under section 4 of Central Excise Act 1944 was contrary to the provisions of law and therefore not sustainable. It was also contended that the goods notified under section 4A could be assessed under section 4 if and only if the provisions of Rule 34 of the Standard Weights Measures (Packaged Commodities) Rules, 1977 are applicable to this commodity and no such provision was made in notification. Further, Section 4A(2) of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned DR reiterated the Order-in-Original passed by the Commissioner and referred to Para-6 of the circular No.625/16/2002-Cx dated 28.2.2002 issued by CBEC which provided basis to the Commissioner to conclude when the goods were sold in bulk, calling for valuation under section 4 and not under section 4A. The said Para 6 of the circular reads as under:- Para 6. It is therefore, clarified that, in respect of all goods (whether notified u/s 4A or not) which are not statutorily required to print/declare the retail sale price on the packages under the provisions of the Standards of Weight Measures Act, 1976, or the rules made thereunder or any other law for the time being in force, valuation will be done u/s 4 of the CE, Act 1944 [or under section 3(2) of the Central Excise Act, 1944, if tariff values have been fixed for the commodity]. Thus, there could be instances where the same notified commodity would be partly assessee on the basis of MRP u/s 4A and partly on the basis of normal price (prior to 1.7.2000) or transaction value (from 1-7-2000) u/s 4 of the C.E.Act, 1944. 10. Heard both sides and gone through the records. 11. The main issue for consideration is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced by appellant. 15. Regarding availment of abatement, the party has pleaded that no abatement has been taken on the contract price but has been taken on the MRP. The Authority concluded that there was no abatement on the invoice price/contract price/transaction value as the party has cleared the goods on contract price, thus no abatement was even required. 16. It is noticed that the appellant heavily relied upon the opinion given on 13.5.2004 by Metrology Department, Jhajjar and also Metrology Department of Ahmadabad. Commissioner held that findings of Metrology Department were not clear cut finding as they expressed their view while Department has to finally examine the matter in terms of provisions of the Act and Rules. Commissioner came to the conclusion that no requirement of printing of MRP declaration was contemplated in the agreements entered into with the different class of buyers visualize as builders/ contractual/industrial buyers/hospital, hotels etc. and fact that ceramic tiles were used in the said project was totally in the knowledge of the party. 17. In respect of exemption under Rule 34 of the PC Rules, 1977, it has been observed that MRP declaration wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The Commissioner (Appeals) has rejected this claim of the appellant on the ground that construction is not an industry. This view is not correct. Construction is treated as an industry under the various statutes and it, in fact, is one of the biggest industries in any country. Appellants case is also covered by the Circular of the Board, dated 28-2-2002 inasmuch as the clearances were in bulk at contracted prices. The issue also remains covered in favour of the appellant by the decision of this Tribunal in the case of Bharti Systel Ltd. v. C.C.E. (supra). In these circumstances, the original duty payments were correctly made and no short-levy remained to be recovered. Proceedings before the lower authorities which found to the contrary are not sustainable. 19. The judgements quoted by the appellant in the case of Grasim Industries Ltd. Vs. CCE, Jaipur-2004 (63) RLT 273 (Tri.-Del.), Bharat Systel Ltd.-2002 (51) RLT 649, Videocon International Ltd. Vs.CCE-2004 (167) ELT 33 (Tri.-Bang.) are found to be on different footing and that is not applicable to the facts of the present case. 20. Appellant contended that the demand was barred by limitation as the fact of clearance u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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