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TMI Blog2015 (9) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... confined to sales effected to NCCF/KB therefore, demand of differential duty, has also to be confined to sales effected to NCCF/KB only. Admittedly appellant sold imported goods not only to NCCF/KB but to other customers also – Goods sold to other customers were sold at RSP or prices lower than RSP declared – In such circumstances imposition of penalty of ₹ 25 lakhs is slightly on higher side – Therefore penalty reduced – Appeal partly allowed – Decided partly in favour of Assesse. - Appeal No. C/564-565/2009 - Final Order No. 52477-52478/2015 - Dated:- 7-8-2015 - Mr. R. K. Singh, Member (Technical) And Smt. Sulekha Beevi C.S., Member (Judicial),JJ. For the Appellant : Shri Naveen Mullick, Advocate For the Respondent : Shri Amrish Jain, SDR ORDER Per: Sulekha Beevi C.S. The appellants are aggrieved by the demand of differential duty, confiscation of goods and imposition of penalty on the allegation that appellants evaded duty by mis-declaring the RSP and selling the goods imported at a higher price than the RSP declared at the time of import. 2. The brief facts are that the appellants, M/S Savi Vision (P) Ltd, deals in Audio Visual Equipments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner of packing and there was no objection. The goods were cleared after paying all duties, charges and complying all formalities. ii) The packings /packages found at the time of search did not have the MRP declared /displayed on them because when the quantity imported was more than one piece, the supplier of goods, packed respective consumer packings in a Master Pack. RSP was declared on these master cartons. When individual packings were removed from master packing they did not bear the MRP. iii) The goods were sold by issuing proper invoices. 80% of the sale was made to consumers other than NCCF/KB and the price collected in these sales was lower than the RSP declared at the time of import. The details of price list of these sales were furnished. That only 20% sale was made to KB and NCCF. The detail of these sales was also furnished by the appellant. iv) That during the disputed period the Circular No. 625/16/2002-CX dated 28/02/2002 issued by the Board was in force which clarified that when supply is effected to DGS and Government Departments, restaurants/Hotels, Canteen stores Depot (CSD) of the Defence services, the printing of MRP on the packing is not required. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the appellants that NCCF/Kendriya Bhandar are institutional consumers and that there is no requirement to display the MRP is untenable. That SVPL has not established that NCCF/KB are not ultimate consumer . The sale to NCCF/KB is also sale to ultimate consumer/retail sale. The sale of goods at higher price than the RSP declared is violation of the provision of law. Further, the packages found in the business premises did not have the display of MRP upon them which also would go to show that the appellants have mis-declared the RSP at the time of import. iii) That RSP is the maximum price at which goods may be sold to the ultimate consumer. The approved pricelist to NCCF/Kendriya Bhandar are basically the MRP (RSP) at which the appellant decided to sell that particular model to ultimate consumer. These prices are to be treated as the MRP at which the particular model may be sold to ultimate consumer. It is irrelevant whether the sale is to NCCF/KB or other ultimate consumer. It is also irrelevant whether the appellant has sold items to other consumers below the RSP declared at the time of import. Therefore the adjudicating authority has rightly taken the pricelist of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isement, delivery, packing forwarding, and all like, as the case may be. Rule 3 of Chapter II of PC Rule 1977 reads as under: 3. Chapter to apply to packages intended for retail sale. The provisions of this Chapter shall apply to packages intended for retail sale and the expression package wherever it occurs in this Chapter shall be construed accordingly. The Explanations to section 4A of the Central Excise Act, 1944 are as under: Explanation 1 : For the purpose 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 sub-section (1) require to declare on the packages, the retails sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. Explanation 2 : (a) where on the package of any excisable goods more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods to other customers at prices lower than the declared RSP, as the appellant had mis-declared RSP, the highest price at which the goods were sold to NCCF/KB was rightly taken by the authorities below as the basis for calculation of differential duty. 8. Against this, the ld. Counsel for the appellant submitted that the appellants had submitted details of the sales effected to NCCF/KB and other customers as per the list furnished. But the authorities below totally failed to consider the details of sales as brought out by records. It is the case of appellants that 80% of the sale was effected to ordinary customers and the prices collected where lower than the RSP declared. That in some cases the charges collected included cost of installation articles provided extra, and also installation charges. That the authorities below ought not to have demanded differential duty on the goods sold to customers other than NCCF/KB as there is no iota of evidence that such goods were sold at a price higher than declared RSP. The ld. Counsel relied upon the decision rendered in Commissioner of C. Ex., Vododara Vs. Bell Granito Ceramics Ltd. 2009 (235) ELT 171 (Tri. Ahd.Bad.) 9. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es lower than the declared RSP or equal to RSP. On such score, there cannot be any mis-declaration of RSP if goods are sold at RSP or below RSP. Undeniably the allegation of collection of higher price is confined to the sales effected to NCCF/KB. The demand of differential duty, in our view, has also to be confined to sales effected to NCCF/KB only. In such circumstances the demand of differential duty of ₹ 1,50,88,287.05 on entire sales is unsustainable. According to the appellant the sales effected to NCCF/KB is only for ₹ 31,240,55/-. 12. The next issue to be addressed is regarding the goods seized at the business premises of the appellant for the reason that the packages did not bear the display of MRP. The goods were confiscated and released on payment of redemption fine of ₹ 5,00,000/-. A demand of ₹ 3,19,593.62/- as differential duty is raised on such goods seized. The explanation offered by the appellant for the packages which did not bear the MRP is that, at the time of import when more than one piece of the same item is imported, the supplier packed them in a master carton. MRP was declared on the master carton. When the individual packings were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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