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TMI Blog2016 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... [Bs/E dt. 18.8.2011, 19.11.2011, 22.11.2011, 29.11.2011, and dt. 29.112011] for clearance of various models of mobile phones and the goods were seized. The officers conducted search of the appellants premises at Hyderabad and recovered documents and also seized 2092 nos. of cell phones of Kechao brand contained in 44 boxes said to have been cleared from Chennai Custom House under B/E No.5176594 dt. 14.11.2011. On examination of the goods, it was found that certain goods were misdeclared and in two Bills of Entry there were excess quantity and also undeclared quantity and also shortage of quantity. On further examination, it was found that certain cell phones were not declared by the appellant in the invoices. Statement was recorded from Mr. Raj Kumar Harwani, Managing Director of appellant company, and after completing detailed investigation, show cause notice dt. 4.4.2012 was issued to the appellant proposing to reject the Retail Sale Price (R.S.P) in all the live consignments and 6-past consignments and also proposing to redetermine the value at higher R.S.P based on contemporaneous R.S.P of identical other similar models. SCN also proposed to confiscate the seized excess goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odels that were recovered as undeclared goods and found excess in quantity of the declared goods in respective Bills of Entry and confiscated the said goods. However he allowed redemption on payment of fine of Rs. 3 lakhs and Rs. 2 lakhs in respect of those goods. (v) She also confirmed the differential duty of Rs. 39,49,795/- on the imports covered under Eight Bills of Entry and Rs. 31,19,432/-on the past clearances covered under Six Bills of Entry. (vi) She ordered for appropriation of Rs. 32,20,377/- deposited volunatarily by appellant as differential duty towards the Customs duty liabilities. (vii) vide Corrigendum dt. 21.1.2014, she imposed Redemption fine of Rs. 30,00,000/- and Rs. 30,000/- under Section 125 (1) of the Customs Act. (viii) She also ordered for enforcement of Bank Guarantee of Rs. 22 lakhs (vide corrigendum dt. 21.1.14) towards duty and adjudication liabilities. (ix) She imposed penalty of Rs. 70,69,227/- in the order which was modified as Rs. 74,95,940/- vide corrigendum dt. 31.1.2014 along with interest on appellant M/s.Bluemax Impex (India) Ltd. under Section 114A of the Customs Act. (x) She imposed penalty of Rs. 7,00,000/- on Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 [RSP Rules]. They are registered with both Sales Tax and Income Tax authorities and discharging VAT on their sales turnover and filing IT returns. They submitted 51 retail sales invoices of their own products to the department indicating the RSP but the same was not considered by the adjudicating authority. He submits that in compliance of Section 3 (2) of Customs Tariff Act they have duly declared the R.S.P and it was never sold at higher price at retail sale than the R.S.P. declared by them. These are sold at lesser R.S.P. whereas the adjudicating authority has determined the R.S.P of Rs. 3000/- and above to all the products based on enhanced RSP the CVD was demanded. The counsel also submits that basic customs duty is NIL. The adjudicating authority has rejected the contemporaneous evidence of RSP cleared through Delhi and Hyderabad on the ground that these cannot be comparable as it is beyond one month period and he submits that on the same logic, the departments relying for R.S.P of Rs. 3000 based on the NIDB data also not comparable. As per Rule 4 (b) (1) of R.S.P.Rules, 2008 if the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side and also he submits that they are ready to provide all necessary documents in support of R.S.P. before the adjudicating authority. 6. On the other hand, Ld.A.R for Revenue reiterated the OIO and relied para-8 of the OIO where the statement of Shri Rajkumar Harwani, Managing Director of appellant company has been recorded where he has admitted in his statement that he is agreeing to revise the R.S.P to Rs. 3000/- and also paid the differential duty. She drew our attention to para 32.1 wherein the adjudicating authority countered the worksheet submitted by the appellant. The department has enhanced the R.S.P. based on the contemporaneous Bills of Entry as per NIDB data which is enclosed as Annexure 3 (Pages 125 to 146). She drew our attention to para-20 to submit that their own identical goods were cleared to Hyderabad at R.S.P of Rs. 2500/- which was not disputed by the appellant. She also relied market enquiry document at page 166 of M/s.G-Five. She further submits that it is not only the question of R.S.P but also appellant misdeclared the goods, quantity and also description where some of the goods were found excess and not declared and misdeclared which was not disputed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Section 4A of Central Excise Act, on importation of the said goods these are liable to be affixed with M.R.P and assessed accordingly for determining the CVD, after allowing abatement as per the notification issued under Section 4A of Central Excise Act. We find that the goods were imported in the year 2011 under 14 Bills of Entry out of which 8 are live consignments and 6 are past consignments. The adjudicating authority had rejected the R.S.P declared and affixed on the goods by the appellant on the sole ground that contemporaneous imports of similar goods where higher RSP was declared by the importer. On perusal of SCN, it is seen that the adjudicating authority listed out a comparative chart of declared R.S.P and contemporaneous R.S.P. of various brands and models of mobile phones. It is pertinent to see that there is no procedure laid out under Customs Act for redetermining the R.S.P on packaged commodities imported by any person for subsequent sale. Therefore, any dispute on R.S.P or re-determination of R.S.P on the imported goods it has to be done only in terms of Section 4A read with Rule 4 of R.S.P. Rules, 2008 read with SWM Act. Once the goods are declared as packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealers, and all chares towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale; As seen from the above statutory provisions, we find that the authority can only redetermine or dispute the retail sale price only if the manufacturer has not declared R.S.P on the packages or not declared the actual R.S.P or tampers with, obliterates or alters the R.S.P. declared on the package of such goods. It stipulates the criteria how to determine the R.S.P. if the declared R.S.P is not acceptable by the Excise authorities. Rule 4 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008 [RSP Rules 2008] clearly explains the methodology sequential manner and if the identical goods are manufactured and are removed within a period of one month before or after removal of such goods, by declaring the R.S.P. then the said declared R.S.P shall be taken as the R.S.P of such goods. Whereas in the present case, we do not find any evidence by the Revenue to show the actual R.S.P of the cell phones sold by the appellant for retail sale to ultimate customer and there is no evidence that they have altered the R.S.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Statute A cannot question the basis. That is within the province of the authorities under Statute B. 48. In the decision of Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. - 1969 (1) SCC 91, the furnishing of a declaration under Section 12(1) of the Foreign Exchange Regulation Act, 1947 was a pre-condition to the export of goods under the Customs Act, 1962. This Court said that the correctness of the declaration could not be questioned by the Custom Authorities on the ground that the declaration under Section 12(1) of FERA was incorrect. Similarly, in M. Narasimhaiah v. Deputy Commissioner for Transport - 1987 (Supp.) SCC 452, the Karnataka Motor Vehicles Taxation Act provided for taxation with reference to a number of passengers which the vehicle was permitted to carry. The assessee had a permit issued under the Motor Vehicles Act, 1939 which permitted him to carry a number of passengers. On the basis that the assessee had carried passengers above the permitted limits, tax was sought to be levied under the Taxation Act in respect of the assessees vehicle. This Court held that when the statute itself provided for the highest levy of tax on the basis of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile re-determining the R.S.P on the imported goods relied NIDB data of past imports. Whereas the appellant had produced their own R.S.P invoices (51 nos.) of lesser RSP before the adjudicating authority which is not considered on the grounds as per Rule (4) RSP of goods cleared in the past which is beyond 1 month is not comparable. If L.As view is accepted the same principle applies to NIDB data relied by the L.A. The L.A has also not brought out any evidences whether the appellant violated any of the provisions of SWM Act (LMA) as declaration of MRP/RSP on the packaged goods is within the ambit of SWM Act which is adopted for Central Excise purpose under Section 4A. By respectfully following the Honble Supreme Court above decision we hold that in the absence of any material evidence that RSP declared by the appellant on the mobile phones are tampered, altered or any flow back received the redetemination of RSP ordered by the adjudicating authority in the impugned order based on contemporaneous R.S.P of imported goods is not in conformity with Section 4A read with R.S.P. Rules 2008 and SWM Act for demanding CVD is liable to be set aside and liable to be remanded to L.A for re-deter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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