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TMI Blog2014 (12) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... claration of RSP (Retail Sale Price - RSP). The same was revised after consulting Samsung Company in India and consequently the TVs were confiscated and ordered to be released on payment of fine and penalty was imposed. 2. Nobody is present on behalf of the respondent and the matter is coming up on the 5th occasion before us. Therefore the matter was taken up and heard. 3. Heard the learned AR who submits that the Commissioner (Appeals) has erred in passing the order against the department. He submits that the assessee had not declared the retail sale price correctly and the same was revised after consulting the manufacturers' representative in India and the under-declaration has been established by the department. He fairly agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther measure of consumer protection and to ensure that duties of central excise are correctly discharged, the valuation of such goods under Section 4A of the Central Excise Act, 1944 is linked to the published price. Consequently, the retailer is in no position to charge beyond the price marked thereon. Since the mandates arise from the above cited statutory rules which apply to goods packaged in India and it is necessary that the retailer be similarly bound in relation to imported products, importers are also required to ensure publishing of like details on packages of imported goods. This has been mandated in the Foreign Trade Policy 2009-14, issued under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 for governing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P stickers were affixed and it is also clear that this affixing can be done even if not present at the time of landing in India. The absence of RSP is therefore not an offence unless cleared from Customs charge without affixing the same. Further, the invoking of Sections 111(d) and (m) are clearly not valid. Section 111(d) is applicable when import is not contrary to any prohibition under the Customs Act. The prohibition under Import-Export Policy is only in relation to the clearance from Customs charge and till then the prohibition does not apply. There is no notification prohibiting the import of such goods under Section 11 of Customs Act, 1962; the EXIM Policy being notified under Section 5, the deeming prohibition under Section 3(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it clearly indicates that RSP on the article with the prescribed abatement shall be deemed to be the value in lieu of the transaction value. Nowhere does it specifically authorize the adoption of Section 4A or any other provisions of Central Excise Act, 1944 dealing with value, let alone provide a lever for taking recourse to the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, as the original authority has done. There is no legal requirement that the quantum of duty collected on imported goods should not be different from the quantum of duty collected on locally manufactured goods; that the same rate of duty shall be required to be imposed is the legal requisite. Equivalence for the purpose of countervail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position having accepted the value declared for the purpose of BCD, value for the purpose of RSP separately could not have been determined. This is a highly complicated legal issue and in the absence of any contrary decision and since we find the decision to be logical at this stage, we are not in a position to grant stay on this ground. Since affixing of RSP before the goods reached the landmark of India is not mandatory, confiscation under Section 111(d) also prima facie is not sustainable. Since we are not able to find logical reasons to record a finding against the impugned order at this prima facie stage, we are unable to consider the request for stay of the impugned order. 5. Even though all these points were considered in det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the amount outstanding; (c) the date of filing of the appeal before the Tribunal and its number, if known; (d) whether the application for stay was made before any authority under the relevant Act or any civil court and, if so, the result thereof (copies of the correspondence, if any, with such authorities to be attached); (e) reasons in brief for seeking stay; (f) whether the applicant is prepared to offer security and, if so, in what form; and (g) prayers to be mentioned clearly and concisely (state the exact amount sought to be stayed). (4) The contents of the appeal/application/cross-objection shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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