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TMI Blog2015 (8) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... a false declaration. If importer himself is selling the tiles at a price higher than the declared RSP, declared RSP is not true - Tax payer cannot be permitted to himself misdeclare the RSP, thereby evade payment of correct amount of duty. Reference to Section 4A of the Central Excise Act to affix RSP is not to affix any RSP but true and correct RSP - Section 4A(1) and 4A(2) of the Central Excise Act is fully applicable to the Explanation to Section 3(2) of the Customs Tariff Act, and disagree with Member (Judicial) that reference to Section 4A of the Central Excise Act is for very limited purpose i.e. to affix RSP and abatement with respect to the Explanation to Section 3(2) of the Customs Tariff Act. In effect, even the Rules introduced in 2008 provide certain steps and if the price cannot be determined under those steps, then it has to be determined based upon the best judgment method which should be in accordance with Section 4A. - provisions of Section 3(2) of the Customs Tariff Act will not become ineffective in the absence of Section 4A(4) of the Central Excise Act, 1944 for the imports made prior to 14.5.2003. In taxation of law, it is not unusual to use the best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided partly in favour of assessee. - Application No. C/MA(Ors)1122/12, Appeal No. C/1108, 1109, 1110 & 1111/08-Mum - - - Dated:- 3-7-2015 - Shri Ashok Jindal, Member (J), P S Pruthi, Member (T), Shri P K Jain, Member (Technical) (Third Member on Reference) For the Appellant : Shri V Sridharan, Sr. Adv. Shri Ratan Jain, CA For the Respondent : Shri K M Mondal, Spl. Counsel ORDER Per: Ashok Jindal: The appellant has filed this miscellaneous application to urge additional grounds on the jurisdiction to issue show-cause notice under Section 28 of the Customs Act by Additional Director (General), DRI, Mumbai. We find that the ground taken by the appellant is legal one therefore, the miscellaneous application is allowed. 2. The main appellant M/s. Nitco Tiles Ltd., (Nitco in short) has filed this appeal against the order of demanding differential duty along with interest and imposition of equivalent amount of penalty and also confiscation of the imported goods and allowed to be redeemed of the same on payment of redemption fine. The appellant has also filed an application for urging additional grounds in defence of their appeals. Shri Vivek Talwar, Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods should not be confiscated and (iv) penalty should not be imposed. Adjudication took place and the proposals made in the show-cause notice were confirmed. Aggrieved by the said order, the appellants are before us. 4. Heard both sides. 5. The learned Counsel for the appellants submitted that in the light of the decision of the Hon'ble Apex Court in the case of CC vs. Sayyed Ali - 2011 (265) ELT 17 (SC), the Commissioner of Customs (Preventive) has no power to issue show-cause notice under Section 28 of the Customs Act, 1962. As the said ground was not taken by the appellants in their appeal filed by them, therefore, they wants to urge the said ground is required to be considered being legal in nature. 6. On merit, he submitted that as Nitco is engaged in the trading of imported tiles which were sold directly to builders, hospitals and hotels without any intermediary involved in such sales. In some cases, the tiles were sold to dealers who in turn sell the same to builders, hospitals and hotels. The imported tiles are of different shade, size, colour, design and grade. Therefore, the sale price of the tiles sold in India depends on all the above factors namely size, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that Explanation to proviso to Section 3(2) of Customs Tariff Act shows that Section 4A(4) of Central Excise Act, 1944 and Explanation 1 and 2 of Section 4A of Central Excise Act, 1944 are not relevant for purpose of Section 3 of Customs Tariff Act, 1975. He relied on the decision of the Tribunal in the case of ABB Ltd. v. CC - 2011 (272) ELT 706 (Tri. Bang.) to support that Section 4A(4) of the Central Excise Act, 1944 is not relevant for the purpose of Section 3(2) of CTA, 1975. He submitted that the decision in the case of Schneider Electrical India (P) Ltd. and Ors. V. CCE - E/949/2009-Mum, relied upon by the learned Spl. Counsel for the Revenue is on some other issue. In fact, in the case of ABB Ltd. (supra) this Tribunal has decided two issues viz. (1) whether Section 4A of the Central Excise Act, 1944 is applicable in toto for determining the value for levy of CVD in respect of goods imported into India and (2) whether the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rule, 2008 can be applied in respect of goods cleared prior to 2008 or not. In the case of Schneider Electrical India (P) Ltd. (supra) the 2 nd issue was taken up by this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order proceeded on a new basis, hence, the same is liable to be set aside. He further submitted that the Commissioner in the impugned order has given up the basis adopted in the show-cause notice and for the first time, without any notice to the appellants, adopted a fresh basis which is beyond the show-cause notice. He further submitted that the Explanation to proviso to Section 3(2) itself is not applicable to the present case since on the packages of imported tiles only one MRP was declared and also for each category tiles sold under one invoice, only one price has been charged by the appellants from the customers. He also submitted that in any case the highest of the RSPs among the different RSPs affixed on different packages or the highest price at which the tiles of a particular colour is sold cannot be the basis for determination of the value of various varieties of the tiles of such colour even by applying Explanation 1 to Section 4A of Central Excise Act, 1944. He further submitted that highest MRP can be adopted only when more than one RSP is affixed on the same package and in no other situation. However, in the present case only one RSP has been affixed on every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same are not sustainable. He further submitted that in the light of decision in the case of Shiv Kripa Ispat Pvt. Ltd. v. CCE - 2009 (235) ELT 623 (Tri. LB) redemption fine is not imposable as the said goods are not available for confiscation. Lastly he submitted that under Section 114A of the Customs Act, 1962, no penalty is imposable on the individuals/employees of the appellants company. Therefore, he prayed the impugned order is required to be set aside. 7. On the other hand, Shri K.M. Mondal, learned Spl. Counsel opposed the contention of the learned Counsel for the appellants and submitted that the impugned goods were subject to MRP based assessment for purpose of CVD in terms of Section 3 of the Customs Tariff Act, 1975 read with Section 4A of the Central Excise Act, 1944. He submitted that the case of the department is that after clearance of the impugned goods, Nitco has changed the MRP stickers affixed on the package of the impugned goods which was per sq. mtr. to MRP per box and a new sticker/stamp was affixed thereon showing MRP per box. This fact was admitted by two representatives of Nitco during investigation. He further submitted that in some cases sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period, the department could not have determined the MRP and hence the demand of duty is not sustainable. The Tribunal accepted the said contention of the appellant to determine RSP in respect of goods manufactured and cleared without declaring RSP on the goods. Similarly, in the absence of similar machinery provisions to determine RSP in CTA, no demand of differential CVD could have been validly raised. Therefore, the Tribunal's decision in ABB Ltd's case is totally different. In fact, in the case in hand there is no dispute that Nitco had declared the MRP in the bills of entry and paid CVD in terms of Section 4A of the Central Excise Act, 1944. However, after clearance, Nitco sold the imported goods at different prices. Therefore, the department has adopted the highest of the selling prices for purpose of quantification of differential duty. Therefore, the decision of ABB Ltd. (supra) has no application to the facts of the case. The present case is not one of determination or re-determination of RSP. It is a case of adoption of MRP at which the imported goods were sold to the ultimate consumer. He further submitted that the decision of ABB Ltd. (supra) has not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods will not attract the provisions of Section 111(m) of the said Act. Consequently, impugned goods are not liable for confiscation and no penalty can be imposed under Section 112A of the Customs Act. In respect of this, he submitted that assuming that the value as defined in Section 2(41) of the Customs Act, 1962 is different from the MRP, nevertheless if there is any misdeclaration with respect to the MRP, it will also attract the provisions of Section 111(m) for the reason that the scope of the expression in any other particular is very wide. It will cover even the misdeclaration of MRP declared in the bill of entry. As mis-declaration in respect of MRP of the impugned goods have been established on record, the impugned goods are clearly liable to confiscation under Section 111(m) of the Customs Act, 1962. Consequently, the appellant is liable for penalty. He further submitted that the Customs Act, 1962 and the Customs Tariff Act, 1975 are complementary to each other. Together they form a composite legislation or an integrated code. That is very clear from the reading of Section 12 of the Customs Act, 1962. To support his contentions, he placed reliance on the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- Section 3 - Levy of additional duty equal to excise duty. Provided that in case of an article imported into India, - (a) in relation to which it is required, under the provisions of the 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 article; and (b) where the like article produced or manufactured in India, or in case where such like article is not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is the goods specified by notification in the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944 (1 of 1944). the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act; or Explanation. - Where on any imported article more than one retail sale pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2 of Section 4A and Section 4A(4) are irrelevant and inapplicable. The Explanation 2(a) of Section 4A if Central Excise Act, 1944 is pari material with Explanation below proviso to Section 3(2) of CTA. If entire provision of Section 4A were relevant and applicable for purpose of proviso to Section 3(2), Explanation below proviso to Section 3(2) of CTA would be redundant. Therefore, the reference to Section4A of Central Excise Act is for very limited purpose. 9.4 We also agree with the arguments advanced by the learned Counsel for the appellant that prior to 14.05.2003, Section 4A(4) of Central Excise Act, 1944 merely provided for confiscation of offending imported excisable goods. We further agree with the argument of the learned counsel for the appellant that proviso to Section 3(2) introduced by Finance Act, 2001 will be governed by Section 4A as on 11.05.2011 and subsequent amendment to Section 4A is not relevant for proviso to Section 3(2) of the Customs Tariff Act. As sub-Section (4) of the Section 4A of the Central Excise Act, 1944 enables the Central Excise Department to re-determine the MRP was brought into force with effect 14.5.2003. Therefore, for the period prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red under the provisions of the Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes of this section, retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale: Provided that in case the provisions of the Act, rules or other law as referred to in subsection (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. Explanation 2. - For the purposes of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962 (52 of 1962), be the aggregate of- .. [Provided that in case of an article imported into India,- (a) in relation to which it is required, under the provisions of the 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 article; and (b) where the like article produced or manufactured in India, or in case where such like article is not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is- the goods (i) specified by notification in the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944 (1 of 1944), the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act; or . Explanation. - Where on any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not the retail sale price as required to be declared under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or rules made thereunder or any other law for the time being in force; or (c) by declaring the retail sale price but obliterates the same after their removal from the place of manufacture, then, the retail sale price of such goods shall be ascertained in the following manner, namely:- (i) if the manufacturer has manufactured and removed identical goods, within a period of one month, before or after removal of such goods, by declaring the retail sale price, then, the said declared retail sale price shall be taken as the retail sale price of such goods: (ii) if the retail sale price cannot be ascertained in terms of clause (i), the retail sale price of such goods shall be ascertained by conducting the enquiries in the retail market where such goods have normally been sold at or about the same time of the removal of such goods from the place of manufacture: Provided that if more than one retail sale price is ascertained under clause (i) or clause (ii), then, the highest of the retail sale price, so ascertained, shall be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad quashed the demand notices issued under 11D of the Act proposing to recover amounts collected as excise duty in excess of what was due and paid to the exchequer on the ground that there was no machinery provision in the statute to recover the same. We find that the situation obtaining in the case on hand is similar to the situation covered by the above judgment. The Section 11D of the Act had provided that every person who has collected any amount from the buyer of any goods in any manner as representing duty of excise shall forthwith pay the amount as collected to the credit of the Central Government . 15.1 On a reading of the above provision, there is no ambiguity as regards the legislative intention. However, the Hon'ble High Court found a conspicuous omission in Section 11D of the Act any provision to initiate any proceedings and adjudicate upon any dispute with reference to the liability envisaged under Sub-section (1) of Section 11 D. While holding Section 11D to be a valid piece of legislation their Lordships of the Hon'ble High Court allowed the writ petitions and quashed the demand - cum - show cause notices. In the light of this judgment we find that the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of such rules issued in terms of sub-section (4) of Section 4A of the CEA, there was no statutory machinery to determine the retail sale price in respect of goods manufactured and cleared by a manufacturer without declaring the RSP on such goods. In the absence of a similar machinery to determine the relevant RSP in CTA, no demand of differential CVD could have been validly raised. In this connection, we rely on the following observations of this Tribunal in the case of Millennium Appliances India Ltd. Vs. Commissioner of C. Excise, Hyderabad [2009 (248) E.L.T. 713 (Tri.-Bang.)] on the applicability of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 prior to 1.3.2008: It can be noted that these rules came into force with effect from 1-3-2008. We are of the considered opinion that if these rules came to be effective on 1-3-2008, the ascertaining of value of similar goods has to be done so, with effect from 1-3-2008 and cannot be used to determine the value for the clearances made prior to 1-3-2008. We find strong force in the contention raised by the learned Counsel that the decision of the Tribunal in the case of Aditya Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.2008 could not be applied. As regards the need to determine the RSP not declared on the package by the assessee for the period prior to 1.3.2008, we are not able to distinguish the case on hand from Millennium Appliances India Ltd case. In that case also RSP was not declared on the package and had to be determined. Following the above decision of the Tribunal, we hold that the impugned order adopted a method to determine the RSP without sanction of law. The decision is squarely applicable to the facts of this case. Therefore, following the decision of this Tribunal in the case of ABB Ltd.(supra) we hold that as CTA does not have similar provisions as contained in the Central Excise (Determination of Retails Sale Price of Excisable Goods) Rules, 2008, the impugned order adopted a method to determine the RSP without sanction of laws. The contention of the learned Spl. Counsel is that an appeal has been filed against the decision of ABB Ltd. Therefore, the same is in jeopardy and the decision of the ABB Ltd. (supra) cannot be relied upon. 9.6 We find that mere admission of appeal filed by the department against the order of Tribunal before the Hon'ble Apex Court does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision in the case of Schneider Electrical India (P) Ltd. (supra) to determine the RSP but in the said case the issue before this Tribunal was that how to determine the RSP in the case of excise matters. Therefore, the same are not applicable to the facts of this case. However, the order of this Tribunal in the case of Schneider (supra) has been stayed by the Hon'ble Bombay High Court vide order dated 07.07.2014. 9.9 The contention of the learned Spl. Counsel for the Revenue is that the provisions of Central Excise Acts/Rules and Customs Acts/Rules are para material to determined RSP. We have not convinced with this arguments as in the case of Central Excise Acts, the duty is payable on manufacture and at the time of clearance of the goods but in the case of Customs, duty is payable at the time of procurement of goods. Particularly, in the case to arrive the assessable on the basis of MRP for payment of duty, the buyer is known in the case of excise but buyer is not known in the case of customs. As the buyer is known in the case of excise and the duty is payable at the time of clearance therefore, the Rules to determine RSP have been framed under the Central Excise but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zation in (August 2004 itself) as the show-cause notice has been issued after six months of such finalization. Therefore, extended period of limitation is not invokable. Therefore, the demand which pertains to the period beyond the limitation period are also not sustainable. We further find that confiscation under Section 111(d) of the Customs Act is not sustainable as Section 111(d) is applicable to the goods which are imported or attempted to be imported or brought into India for the purpose of being imported, contrary to any prohibition imposed in the Customs Act or under any other law for time being in force. But in the present case, there is no prohibition imposed under the Customs Act or under any other law for the time being in force in respect of tiles imported by the appellant. Therefore, confiscation under this Section is not warranted. 9.13 We further find that the confiscation under Section 111(m) is applicable to any goods which do not correspond in respect of value or in any other particular with the entry made under the Customs Act or in the case of baggage with the declaration made under Section 77 in respect thereof, or in the case of goods under transshipment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after clearance from customs, the appellants sold the goods to dealers at prices which were higher than the MRP declared before customs clearance. This fact is admitted by the appellants as below. 15. In his statement recorded under Section 108 of the Customs Act, 1962, Shri Anup Kumar Parashar, Asstt. General Manager (Customs P.R.) stated, inter alia, that they imported vitrified tiles from China UAE his job involves customs clearance work of imported consignments that Mr. V.G. Borkar, Vice President-Finance is responsible for imports and pricing; that the tiles are stocked at Alibaug and Kanjur marg divisions; that at the time of Customs clearance they affixed MRP stickers as required under the Standards of Weights and Measure Act, 1976 or by stamping on the boxes containing imported tiles box; that the sales are made in the same packages; that in the case of sales from Alibaug/Kanjur Marg Divisions to the dealers they change the MRP on stickers/stamps at the time of sale from square meter basis to MRP per box; that they have made sales to dealers at prices higher than the MRP declared to Customs calculated on sq. mtr. basis; that regarding the new MRP (per box) stickers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding sale invoice number) which should have been declared. (iii) Shri Vivek P. Talwar, Managing Director stated that he has gone through the statements of Shri Anup Kumar Parashr and Shri Bhaskar G. Borkar and he confirms all the contents therein as being true and correct; he also confirms the authenticity of the data submitted by Mr. Borkar on 28.2.2005 showing the statements/details of the imports of tiles for which RSP based assessment was resorted to by M/s. Nitco Tiles Ltd. for payment of CVD/SAD in the B.E's filed with Customs and the corresponding sales thereof that he is overall in charge in relation to imports, and, with reference to decisions on import pricing and sale pricing that they have sold the imported tiles at prices higher than the MRP/RSP declared to Customs in a few cases and that he agrees to pay the differential duties in these cases. 16. The above statements recorded under Section 108 of the Customs Act reveal that the appellants did sell tiles of various sizes to the dealers at prices which were higher than the MRP declared on the packages before the same were cleared from Customs. It is noted that the statements have not been retracted by any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944(1 of 1944) the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of the Central Excise Act, 1944 (1 of 1944) Explanation. - Where on any imported article more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section. And this is the charging Section for determining CVD duty on MRP basis on imported goods. 17.1 The Ld. Counsel Shri V. Sridharan has painstakingly taken us through the relevant provisions of Section 3(2) ibid and Section 4A of the Central Excise Act, 1944. He has also described the various amendments in these two Sections from time to time. Thrust of his argument is that the reference to Section 4A of the Central Excise Act in the proviso to Section 3(2) of the CTA is only to identify the goods which are go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;declare' as they are relevant to the discussion hereunder. To me it is clear that once the goods are specified under Section 4A(1) of the Central Excise Act, necessarily the CVD is to be charged on MRP basis. The proviso to Section 3(2) of Customs Tariff Act unambiguously states that in the case of such goods, the retail sale price has to be declared on the package as required under the Standards of Weights and Measures Act, (SWM). The critical words are required and declared in the case of imported goods which are specified under Section 4(A)(1) of the Central Excise Act. The question which arises is - what is the retail sale price that is required to be declared. For this we have to revert to the provisions of Standards of Weights and Measures Act, 1976 and the Rules made thereunder. These Rules called the Standards of Weights and Measures (Package Commodities) Rules 1977 define retail price (RSP) under Rule 2(r) as 2(r) - retail sale price means the maximum price at which the commodity in packaged form may be sold to the ultimate consumer and where such price is mentioned on the package, there shall be printed on the packages, the words Maximum or Max, retail p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fying the goods. In the present case the facts are different. Here the MRP was wrongly declared in the Bill of Entry. After clearance from Customs, the appellants sold the goods at prices which are different from the MRP declared by them. The case of Revenue is that the MRP was wrongly declared. It is my considered view that even if there are no machinery provisions laid down in Section 3(2) of the CTA and Section 4A(4) of the Central Excise Act, it cannot be concluded that Section 3(2) of the Customs Tariff Act will become ineffective and the law rendered otiose. I am in agreement with the reliance placed by the Special Counsel for Revenue Mr. K.M. Mondal on the case of Rupani Spinning Mills Pvt. Ltd vs. Union of India 1992 (60) ELT 77 (Guj.), where the issue was the absence of any machinery provisions or rules regarding mutilation of imported rags under Section 24 of the Customs Act. The Hon'ble High Court held that .............Therefore, if the import of such rags is to continue, a pragmatic approach is called for Section 24 of the Customs Act provides the clue thereto. Under that provision the Central Government is empowered to make rules for permitting at the request of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming of Rules under Central legislations does not mean that tax is not leviable in respect of assessments under the CST Act, 1956. The Supreme Court held .............a taxing statute indisputably is to be strictly construed. [see J. Srinivasa Rao v. Govt. of Andhra Pradesh Another - 2006 (13) SCALE 27]. It is, however, also well-settled that the machinery provisions for calculating the tax or the procedure for its calculation are to be construed by ordinary rule of construction. Whereas a liability has been imposed on a dealer by the charging section, it is well-settled that the court would construe the statute in such a manner so as to make the machinery workable.............In M/s. Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai [JT 2006 (12) SC 379 2006 (9) SCALE 652], this Court opined: In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does not, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act.... Computation provisions may bear a relationship with the nature of charge and charging section and computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which CVD is required to be paid under Section 3(2) of the Customs Tariff Act. And this is precisely what Revenue has done, to demand duty on correct MRP. 18. As mentioned above, the reliance on the case of ABB is misplaced. On the other hand, the case of Planet Sports Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2005 (180) ELT 206 (Tri.Del.) has a more direct bearing on the circumstances of the case at 'hand.. It was held by the Tribunal that It is also not disputed by the Appellants that the MRP declared by them at the time of importation was not the same at which the goods were sold by them subsequently. This fact has been admitted by Shri Dipak Agarwal, Financial Controller of the Appellants, in his statements. Accordingly, the appellants are liable to discharge their duty liability on the basis of actual MRP at which the impugned goods are sold and not on the basis of MRP declared by them............. In the present matter before us, it was incumbent upon the importer to declare the MRP at which the imported goods were to be sold and not any other price. The judgment in the case of ITC Ltd. is also not applicable as the facts are different. In ITC case the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Standards of Weights and Measures Act. And this is the essence of the proviso to Section 3(1) of the Customs Tariff Act, which uses the word in relation to which it is required under the provisions of the Standards of Weights and Measures Act (SWM), 1976 or Rules made there under. The retail sale price has to be that which is required to be declared under the SWM Act. And no other price. I have explained in para 17 above as to which retail sale price should have been declared. 21. Another argument of the appellants is that the FIFO method adopted cannot be the basis to arrive at MRP for all sales. I note that in the absence of any other method or any other more judicious method, the adoption of FIFO method is most reasonable and has also been accepted by the Managing Director of the appellants as emphasized by Ld. Special Counsel. As regards determining the MRP by the Revenue on the basis of size alone of the tiles, which the appellants call a fundamental blunder, I find that the adjudicating authority has stated that in the sale invoices issued to the local buyers, no factor of shade, design colour, has been mentioned on the invoices. This belies the claim of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, will be applicable to the Customs Tariff Act. 24.1 It is strangely being argued by the Ld. Counsel that confiscation, ordered in the adjudication order passed by Commissioner against which the present appeal lies, under Section 111(d), 111(m), and 111(o) is not sustainable as these sections are not applicable. I fail to understand the logic of this reasoning. The matter has to be seen in a correct perspective. For better appreciation we may refer to the Sections 111(d), 111(m) and 111(o) of the Act as reproduced below: Section 111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confiscation. (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof or in the case of goods under transshipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of section 54. The scope of this sub-section 111(m) is very wide. Any goods which do not correspond in respect of value or in any other particular with the entry mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, that action cannot be taken under the Customs Act, for the reason that Section 3(2) of the Customs Tariff Act is a self contained law, is a little farfetched and not accepted. Section 12 of the Customs Act is the charging Section which states that except as otherwise provided in this Act or any other law for the time being in force duties of Customs shall be levied at such rate as may be specified under the Customs Tariff Act 1975------------- . The Hon'ble Bombay High Court in the case of Subhash Photographics vs. Union of India 1992 (62) ELT 270 (Bom.) held that the two enactments form a composite legislation. It was held that The Customs Tariff Act, 1975 specifies the rates at which the duties of customs shall be levied under the Customs Act, 1962. The rates are specified in the Schedules to the said Act. A perusal of the scheme of these two enactments makes it absolutely clear that though they are two separate enactments, one cannot be given effect to without the other Section 12 of the Customs Act levies the charge and indicates the taxable event. The rates, however, are not specified therein or elsewhere in the Act. It has been left to be specified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Tariff Act as held by the Hon'ble Member (Judicial). Or The CVD is to be paid on the basis of higher prices at which the goods of the same size were sold to the customers and which were required to be declared as MRP under Section 3(2) of the Customs Tariff Act, 1975 as held by the Hon'ble Member (Techncial). 4. Whether in the facts and circumstances of this case, FIFO method adopted by the revenue is without sanction of laws to arrive at the MRP of the goods as held by the Hon'ble Member (Judicial). Or It is most reasonable method to arrive at the MRP in the absence of records to correlate Bills of Entry and invoices and in the absence of any other more judicious method as held by the Hon'ble Member (Technical). 5. Whether the Tribunal's decision in ABB Ltd.'s case squarely applies to the facts of this case as held by the Hon'ble Member (Judicial) Or It does not apply to the facts of this case, on the contrary Tribunal's decisions in the cases of Planet Sports Pvt. Ltd. and Media Industries Ltd. squarely apply to the facts of this case as held by the Hon'ble Member (Technical). 6. Whether in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of import, the appellants were declaring RSP on per square meter basis (and not on the basis of the quantity contained in the box). Stickers were put on the boxes at the time of import and tiles were being cleared thereafter from the Customs. After clearance from the Customs, before selling the same, other stickers were put which converted the already declared RSP from per square meter basis to per box basis. Revenue's case is that the appellants were selling the goods sometime at a price higher than the declared RSP at the time of clearance and hence the declared RSP is not the true RSP. Further RSP is defined to mean the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer. Revenue's case is therefore that the highest price at which the tiles were sold by the appellant is the correct RSP. BY not declaring the correct RSP, appellant has evaded the duty. 29. In order to appreciate the various issues in correct perspective, it would be necessary to see the relevant provisions under the Customs Tariff Act, 1975. The Customs Tariff Act, 1975 was an Act to consolidate and amend the law relating to customs duties. Section 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs. Explanation. - In this sub-section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. For the purpose of (2) calculating under sub-sections (1) and (3), the additional duty on any imported article, where such duty is leviable at any percentage of its value, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 (52 of 1962), be the aggregate of - (i) the value of the imported article determined under sub-section (1) of section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined by rules made by the Central Government in this behalf. (4) In making any rules for the purposes of sub-section (3), the Central Government shall have regard to the average quantum of the excise duty payable on the raw materials, components or ingredients used in the production or manufacture of such like article. (5) If the Central Government is satisfied that it is necessary in the public interest to levy on any imported article [whether on such article duty is leviable under sub-section (1) or, as the case may be, sub-section (3) or not] such additional duty as would counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may, by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty at a rate not exceeding four per cent. of the value of the imported article as specified in that notification (6) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same manner as, a duty of customs, but not including the special additional duty referred to in sub-section (1); and (iii) the additional duty of customs chargeable on that article under section 3 of this Act.(3) The duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force.(4) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to refunds and exemptions from duties, shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act.(5) Nothing contained in this section shall apply to any article, which is chargeable to additional duties levied under sub-section (1) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957). 29.3 In fact, late on, above mentioned Section 3 and Section 3A were merged and replaced by new Section 3 in 2005. For the purpose of this case, old Section 3 would be relevant as dispute pertains to the period prior to 2005. 29.4 As far as the lis in the present case is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14 of the Customs Act, plus basic customs duty. This is the scheme of valuation of the goods for purpose of computing the CVD under Section 3 and is in the nature of deemed value. However, for certain notified articles, the excise duty is charged under Section 4A and not under Section 4 of the Central Excise Act, 1944. Under Section 4A, the value is not the transaction value but is with reference to the retail sale price of the goods. Thus, for goods specified under Section 4A, it is not the transaction value but value arrived at taking retail sale price declared on such goods less such amount of abatement, if any, as the Central Government may allow by notification. Further, Explanation 1 after sub-section (4) of Section 4A defines retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes local or otherwise, freight, transport charges, commission payable to dealers, and all charge towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale. The question arises that when the goods which are covered under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , duty at the rate as prescribed under the Central Excise tariff Act will be charged. It is interesting to see that in case of goods covered by Section 4 viz., transaction value does not exist and there is no need to go for value (which is deeming in nature) under main Section 3(2) of the Customs Tariff Act. 29.5 In order to further analyse the issue, Section 4A of the Central Excise Act is reproduced below: SECTION 4A - Valuation of excisable goods with reference to retail sale price - (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 the 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 the retail sale price declared on such goods less such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price and duty was being paid with reference to the value so arrived. However, later on, it was found that appellants themselves were selling some goods at a price higher than retail sale price declared by them to the Customs. The issue is whether the declared sale price should be taken as RSP or the highest of actual retail prices should be taken as RSp for CVD purposes. 30. The first point of difference of opinion reads as under:- 1. Whether the reference to Section 4A of the Central Excise Act is for a very limited purpose i.e. to affix RSP and abatement with respect to the Explanation to Section 3(2) of the Customs Tariff Act as held by Member (J). Or The reference to Section 4A(1) and 4A(2) of the Central Excise Act is fully applicable to the Explanation to Section 3(2) of the Customs Tariff Act as held by Member (T). 30.1 Member (Judicial) has taken the view that reference to Section 4A of the Central Excise Act is for a limited purpose i.e. to affix RSP and abatement with respect to the Explanation to Section 3(2) of the Customs Tariff Act. Thus, Member (Judicial) has taken a view that once any RSP has been affixed by an importer and duty has been paid (based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for higher margin with ITC Ltd. They may not do that business and in case such wholesalers/retailers are selling the goods at a price more than the printed price, they would be violating the provisions under the Standards of Weight and Measure Act,1976 and the Rules made thereunder and the State Governments are empowered to take action against such person. Similarly, consumer can lodge a complaint to such authority if any of such wholesalers/retailers etc. are asking for a price more than printed price. It would be out of place to mention that the Hon'ble Supreme Court in the case of ITC Ltd. (supra) in para 36 has observed as under:- 36. There is no allegation of any 'flow back' in the appellant's case. Therefore the 'permitted' course of action or sale by the retailer is statutorily prescribed under the 'the SWM Act' and the Packaged Commodities Rules.............. The facts in the present case are entirely different. In the present case, the importer himself is charging a price higher than the RSP declared to the Customs. Thus there is realization of an amount higher than declared RSP by the importer himself. 31.1 Thus, the reliance pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under:- 2. Whether the provisions of Section 4A(4) of the Central Excise Act, 1944 are not applicable for the import made prior to 14.05.2003 in terms of provisions of Section 3(2) of the Customs Tariff Act as held by Member (J). Or The provisions of Section 3(2) of the Customs Tariff Act, will not become ineffective in the absence of Section 4(A)(4) of Central Excise Act, 1944 for the import made prior to 14.05.2003 as held by Member (T). 32.1 Both Member (Judicial) and Member (Technical) have made reference to a date viz. 14.5.2003. On 14.5.2003, Section 4A(4) of the Central Excise Act,1944 was amended and new sub-section (4) of Section 4A is as under:- 4) Where any goods specified under sub-section (1) are excisable goods and the manufacturer - (a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted Section 4A(4) provides specifically that where a manufacturer removes such goods without declaring the RSP or declares a RSP which is not the RSP as per law or tampers with, obliterates or alters the RSP declared on the package of goods after their removal from the place of manufacture, then the RSP of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the RSP for the purpose of Section 4A. Thus, in effect, before 14.5.2003, the law was silent on how to determine the correct RSP in situations enumerated earlier. W.e.f. 14.5.2003, the law provided that RSP will be ascertained in the prescribed manner. Of course, even the new Section 4A(4) did not prescribe the details and was to be prescribed by means of rules which were notified much later. Member (Judicial), in effect, is taking the view that before 14.5.2003, if a manufacturer and importer misdeclares the RSP on the package, then the Revenue could not have corrected the misdeclared RSP and was required to collect the duty as per the misdeclared RSP. For example, if goods with a correct RSP of ₹ 100/- was cleared on a declared RSP of ₹ 50/-, the Revenue was stopped from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n force to declare on the package thereof a retail sale price of such goods, then the provisions of sub-section (2) shall apply and sub-section (2) provides that the value will be based upon the retail sale price declared on such goods. Thus, Section 4A presupposes a requirement for declaring the retail sale price. Obviously the declaration has to be true and correct declaration and not any declaration. In the present case, the importer/appellant has declared certain prices but himself sold the goods at price higher than the declared price. The Explanation under Section 4A(1) clarifies that for the purpose of this Section, retail sale price means the maximum price at which the excise goods in package form may be sold to the ultimate consumer and includes all taxes (local or otherwise), freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like. Since the appellant himself has sold the goods at a price higher than the declared RSP, the declared RSP cannot be considered as true declaration of the price. In fact, after the appellant has sold the goods, the dealers would be selling the same goods on prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere required to be declares, as MRP under Section 3(2) of the Customs Tariff Act, 1975 as held by the Hon'ble Member (Technical). From the above, it would be seen that Member (Judicial) is of the view that the prices at which the goods have been sold to the consumer should be construed to be RSP for demanding duty (CVD) as per Section 3(2) of the Customs Tariff Act. On the other hand, Member (Technical) has taken the view that the CVD is to be paid on the basis of higher prices at which the goods of the same size were sold to the customers and which were required to be declared as MRP under Section 3(2) of the Customs Tariff Act, 1975. It would be seen that Explanation 1 of Section 4A before or after 14.5.2003 stated that for purpose of this section, retail sale price means the maximum price at which the excisable goods in package may be sold to the ultimate consumer and includes .... .... and the price is the sole consideration for such sale. Thus, the concept of the RSP is maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer. In the present case, the appellant has imported a particular consignment declaring a particular RSP but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of higher prices at which the goods of the same price were sold to the customer and which were required to be declared as RSP under Section 3(2) of the Customs Tariff Act, 1975 as held by Member (Technical). 34. The fourth point referred to me is as under:- 4. Whether in the facts and circumstances of this case, FIFO method adopted by the revenue is without sanction of laws to arrive at the MRP of the goods as held by the Hon'ble Member (Judicial), Or It is the most reasonable method to arrive at the MRP in the absence of records to correlate Bills of Entry and invoices and in the absence of any other more judicious method as held by the Hon'ble Member (Technical). 34.1 In this case, Member (Judicial) has taken a view that FIFO method adopted by the Revenue is without sanction of law to arrive at the MRP of the goods, while Member (Technical) has taken the view that FIFO is the most reasonable method to arrive at the MRP in the absence of record to correlate bills of entry and invoices and in the absence of any other more judicial method. 34.2 It is noted that during the investigation, the appellant was asked from their accounting and stock accountin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was throughout at 16% only and the percentage of abatement was throughout at 45% of the RSP and, therefore, the FIFO need not be resorted. It was further submitted that even if it is assumed that FIFO method is necessary, the impugned order should have compared the respective actual sale price with the value already declared in the bill of entry and work out the differential duty, if any, then payable. The entire basis for demand of differential duty is by taking the highest price of one particular variety of tiles and adopting the same as RSP for all other varieties irrespective of the actual sale price of such other varieties of tiles. This basis is, therefore, without any legal support and hence the same is liable to be set aside. The learned senior counsel has also submitted that they have already submitted two affidavits dated 6.8.2013 and 16.8.2013 and the department in their affidavit in reply filed on 20.5.2014 has not contested the computation made by the appellant. Thus, the computation made by them remains uncontroverted. 34.6 As mentioned earlier, it is undisputed fact that the goods have been sold at a price higher than the declared price. As per the definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices assigned to each bill of entry and determine price band in which the goods of a particular bill of entry are sold based on FIFO method and while determining the band stray transactions must be ignored. Higher transaction price in the band should alone be taken as the RSP. For example, in the said case, it will be 409.33.( There are few other stray transactions at 587.69 etc.). 34.8 It is to be noted that though assessment of tiles under Section 4A started with effect from 1.3.2001, but appellants were in the business of import/sale even before that and it is not as if stock of all types/size of tiles was NIL as on 1.3.2001. Obviously they would have sold such stock/part of such stock during the period under dispute. In the proposed method of computation this has been totally ignored. Many of the transactions will be from such stock. Stray cases of sale may possibly be from such stock. 34.9 It is also seen from annexure A to the show cause notice that there are number of bills of entry where declared RSP has been accepted as based upon FIFO method, there was no transaction exceeding the declared RSP. While what has been done is correct, it is possible that some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly it is not possible at this stage to know bill of entry and date-wise stock and the only solution is to consider all bills of entry of that size imported earlier to the last date of sale based upon FIFO method. For example, on 4 th December 2001, last lot of tiles (size 500 x 500 floor tiles) are being sold, then Revenue must take the RSPs of all the bills of entry (of the size 500 x 500) whose stock may possibly be available on 4 th December 2011 and only if determined RSP crosses RSPs of all such possibilities, Revenue must compute differential duty taking the determined RSP and declared RSP. In case determined RSP is less than that of any such possibilities, no differential duty needs to be demanded. In the chart, one finds that for earlier three bills of entry, RSP has been assessed at ₹ 961.11, ₹ 844,69, ₹ 1222.57 and stock of such tiles were available. As per working in respect of clearance of 4 th bill of entry, RSP determined as ₹ 807/- which is less than earlier three RSP. It is possible that goods sold at that price (Rs. 807) may be from earlier stock. Thus no differential duty needs to be demanded by Revenue. Benefit of doubt must go to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If for every transaction, the sale price is taken as the RSP, then there will be no meaning of the RSP. As per law, RSP is defined as the maximum sale price at which the goods are sold in retail to the ultimate consumer. However, the appellants have been able to bring out the point that the method adopted by the Revenue results in exaggerated demand and needs to be revisited. 34.13 From the above discussion, my conclusion is that in the facts and circumstances of the case, first-in-first-out method is the most reasonable method. However, the computation part adopted by Revenue needs to be improved by taking the following two steps, - (i) In respect of each bill of entry, stray transactions are required to be ignored and a band in which the goods have been sold is required to be determined. The highest in such band will be actually the RSP. (ii) The differential duty is required to be ascertained only in respect of those bills of entry where RSP determined is more than the declared RSP and RSP so determined exceeds the RSPs in the earlier consignments or any consignment arrived on or before the last date of sale of tiles covered by that bill of entry by FIFO method. 35. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in the instant case, the appellants have not declared a changed or affixed different MRP on the package subsequent to import. The question is therefore as to whether the Customs have power to redetermined the MRP. 35.2 I have carefully gone through the case of ABB Ltd. (supra). In that case, the basic dispute was whether the goods are covered by Section 4 or Section 4A. In the present case there is no dispute about the applicability of Section 4A. In fact, the appellant himself has declared a value and paid the duty under Section 4A. The issue here is whether the value declared is a correct RSP or not. In my view, the decision of the Tribunal in the case of ABB Ltd. (supra) is not applicable to the facts of the present case. On the contrary, I find that the Tribunal's decisions in the case of Planet Sports (supra) and Media Industries (supra) squarely apply to the facts of this case. I find that Member (Technical) in para 17.5 on page 43 to 52 has elaborately discussed and extracted from the said judgments and I entirely agree with the same and I am not repeating for the sake of brevity. The learned senior counsel has tried to distinguish the case of Planet Sports on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such provision, for implementing the said Section 4A, the spirit of Section 4A as also the spirit of Section 3(2) read with Section 3(1) of the Customs Tariff Act, the RSP could have been redetermined. There was no prohibition to redetermine. Any interpretation to the contrary will lead to absurd result. For example, if an item having a correct RSP of ₹ 1000/- is misdeclared by an importer as having a MRP of ₹ 500/- and if a view is taken that the importer will be required to pay the duty corresponding to ₹ 500/- only, this would lead to a situation wherein misdeclaration and tax evasion will be encouraged and would be contrary to the spirit of all the three sections, i.e. Section 4A of the Central Excise Act, Section 3(1) and Section 3(2) of the Customs Tariff Act. In the present case, it is not as if the Revenue has followed the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 for redetermining RSP. All that the Revenue has done in the present case is that they have taken the RSP based upon the maximum price at which the appellant himself has sold the goods. In my view, there is nothing irregular or incorrect in such a redete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, the provisions of this sub-section shall have effect as if for the words 'one year' and 'six months', the words 'five years' were substituted. It would thus be seen that the requirement under Section 28 for invoking the extended period is to find out whether the short levy is by reasons of collusion or any wilful misstatement or suppression of facts by the importer or his agent or employees of the importer. In the present case, statements of the employees of the appellant-firm were recorded wherein they have clearly admitted that RSP was declared merely based on the landed cost and their estimate of selling price. Further, it was clearly in the knowledge of the appellant's employees as also senior officers including the Managing Director that the goods were being sold at times at a price which was much higher than the declared RSP. Thus there was a clear-cut wilful misstatement or suppression of facts by the importer and his employees and the requirements of Section 28 for invoking extended period are satisfied. The fact that provisional assessments were finalized during the investigation period is of no relevant or consequence for invoking provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n imported against the restriction imposed under Sections 111(d) and (o) of the Customs Act, 1962. Further, Member (Technical) has taken the view that the goods are liable to confiscation under Section 111(m) as the said sub-section provides for confiscation of the goods which do not correspond any value or in any other particular with the entry made under this Act. Member (Technical) has taken the view that the MRP declared in the bill of entry was misdeclared and, therefore, the goods were not corresponding in this respect and are, therefore, liable to confiscation under Section 111(m) of the Customs Act. 38.2 In the present case, the appellants had declared certain RSPs and sold the goods both below the declared RSP in some cases above the declared RSP. However, as discussed, with reference to para 4, it has not been possible to clearly pinpoint the consignments or part of the consignment where goods have been sold at a price more than the declared RSP and hence RSP is misdeclared. Even the computation of the duty short paid is based upon number of assumptions. Under the circumstances, in my view, this is not a fit case for confiscation of the goods without going into the det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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