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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 ..... 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. Rule 28A of the Rules provided for filing an appeal and seeking stay against pre-deposit of duty demanded and penalty. The rule does not cover appeals filed by the Revenue at all. Since the stay application is not covered by the relevant rules at all, on this ground also the stay application has to be rejected - Stay on release of goods denied. - Decided against the revenue. - C/1016/2012-DB - Misc. Order No. 21201/2014 - Dated:- 16-5-2014 - Shri B.S.V. Murthy, Member (T) and S.K. Mohanty, Member (J) Shri A.K. Nigam, AR, for the Appellant. None, for the Respondent. ORDER Revenue is in appeal against the impugned order and seeking stay since if the order is implemented, the respondent will be eligible to get the TVs released. The impugned order came to be passed on an appeal filed by the respondent against the stand taken by the Revenue that in respect of Samsung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation 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 the manner in which imports can be effected, by condition 5 of Chapter 1A : General notes regarding Import Policy in ITC (HS) Classifications of Export and Import Items. The levy of additional duty on imported goods by adoption of retail selling price as the value is similarly sanctioned by a parallel authority in the Customs Tariff Act, 1975. In the impugned order, the wrong authority has been cited in the finding relating to compliance with the requirement of declaration of price on the imported packages as the said notifications were intended to incorporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Basic Customs Duty, would have been applied for calculation of additional duty under the Customs Tariff Act, 1975 without the need to take recourse to valuation under Section 4 of the Central Excise Act, 1944 separately. The additional duty, though intended to countervail the central excise duty leviable on goods manufactured in the country, is not a levy under the Central Excise Act, 1944. The situation has not altered since the introduction of Section 4A in the Central Excise Act, 1944 and there is no requirement to take recourse to the provisions of that Act to compute the additional duty which is authorized under proviso (b) of Section 3(2) of the Customs Tariff Act, 1975 by providing for a valuation system independent of Section 14 of the Customs Act, 1962; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 detail and discussed during the hearing, ultimately stay application cannot be considered since it has been filed under Rule 28A of Customs, Central Excise and Service Tax Appellate Tribunal Procedure Rules. For better appreciation Rule 28A is reproduced as under : RULE 28A. Procedure for filing and disposal of stay petitions. - (1)(a) Every application preferred under the provisions of the Acts for stay of the requirement of making deposit of any duty demanded or penalty levied shall be presented in triplicate by the appellant in person or by his duly authorised agent, or sent by registered post to the Registrar or any other office authorised to receive memoranda of appeals, as the case may be, at the Headquarters of the Bench having jurisdiction to hear the appeal in respect of which the application for stay arises : (b) One copy each of such application shall be served on the authorised representative of the Commissioner or, as the case may be, the Administrator simultaneously by the applicant. (2) Ever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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