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TMI Blog2016 (1) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... es are identical in nature. 2. Appeals No. C/41927/2015 & C/41928/2015 are arising out of common OIA dated 12.08.2015 and appeal No.C/41789/2014 is arising out of OIA dated 06.05.2014. The brief facts of the case are that the appellants are importers of LCD/LED Monitors and Television sets of various sizes falling under CTH 85285100 of CTA, 1975 and filed Bills of Entry for clearance of these goods. They claimed full exemption from BCD under Notification No. 24/2004-Cus dated 01.03.2005 and indicated MRP/RSP on the packages. The B/Es were assessed for CVD @ 12% on MRP based assessment claiming 35% abatement in terms of Section 3(2) of the CTA read with Section 4A of the Central Excise Act, 1944, and the notification issued there under. The appellants were issued SCNs dated 30.04.2013, 21.10.2013 and 5.11.2013 for denial of assessment under Section 4A and demanded differential duty on the ground that the said goods were sold to industrial consumers and therefore, assessment under MRP is not applicable. The adjudicating authority in his OIO's demanded differential duty along with interest under Section 28 AA of the Customs Act and imposed penalty under Section 112 (a) of CA. and ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial consumers. He submits that as a dealer/importer, they are required to affix MRP as per the MRP supplied by the brand owners such as HCL & Wipro. They have no say on the RSP/MRP. He further submits that the goods are packaged commodity and are rightly covered under LMA. He also submits that at the time of sale they do not know whether it is for consumption or for sale by the subsequent transaction by the buyer. Further, he submits that the LMA and Rule 3 w.e.f. 13.04.2011, Rule 3 the definition of industrial consumer means, industrial consumer who buy packaged commodity directly from the manufacturer for use by that industry. The same definition continued under Rule 2 (bb) from 6.6.2013. Only from 14.5.2015, the said Rule was amended to include manufacturers or importers or wholesale dealers. He submits that this amendment came into effect only from 14.05.2015 and in their case Rule 3 and Rule 2 (bb) is not applicable as they are not manufacturers. 4. He also submitted that the goods imported and cleared either to brand owners or under their own brand or unbranded clearance are identical in nature except for size and specification and covered under LMA as packaged commodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants should have claimed exemption under Rule 3 Rule and 2 (bb) o LM Act. Regarding the citations relied on by the appellant, he submits that all the citations were discussed in the impugned order and countered by the appellate authority. Therefore, the monitors imported and sold to HCL and Wipro fully satisfies sale to industrial consumers and it is in conformity with the Rules. He further submits that the appellant's contention of sale to their own brand and non-branded sales, he submits that each transaction has to be seen that how the sale was made under the terms and conditions. 7. In the rejoinder, the Ld. Advocate countered the arguments of the Ld. AR and submits that they are registered under LM Act as importer trader/dealer. He drew attention to the Registration Certificate and submits that if the department's view is taken, they will be liable for action under LMA itself. The monitors are rightly covered under LM Act as packaged commodity and also submits that they have not opted for exemption from the industrial consumers and not from LMA. Further, he submits that they have affixed the MRP supplied by the HCL and Wipro confirms that they have affixed RSP and at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the objection on MRP assessment only from 10.05.2012, when the abatement percentage was increased from 20% to 35% on the said goods and this confirms the fact that the customs was satisfied that the goods are covered under MRP and accepted the assessment under MRP/RSP for payment of CVD as per the provisions of Section 4A of CEA read with Section 3 (2) (b) of CER prior to 10.05.2012. We also find that once it is accepted, that the goods are covered under LMA as packaged commodity, for certain period the same goods cannot be held that these are not packaged commodities w.e.f. 10.05.2012 because of the higher abatement allowed on LCD/LED monitors. It is not disputed that the appellants as importer/dealers regularly imported monitors and sell in wholesale trade to various customers ie., Brand owners and also sell their own brand and unbranded goods. The monitors with specific brand name affixed on it were imported and sold to Wipro/HCL etc. The import of monitors bearing their own brand names and unbranded goods, the department accepted assessment under MRP for CVD purposes. 10. We find the Revenue's contention is only on part of the imports which are cleared to the brand owners, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own brand and as unbranded. From the reading of Rule 3 and Rule 2 (bb) as existing from 13.4.2011 to 14.5.2015, it is very clear that the definition of industrial consumers under LM Act and the Rule relates to sale of packaged commodities directly to the industrial consumers from the manufacturers. The very fact that the amendment made in Rule 2 (bb) w.e.f. 14.5.2015, including the importers, wholesale dealers in the definition of industrial consumers, confirms that during the relevant period, the appellant being the importer/dealer imported monitors and sold to the brand owners is not covered under the category of sale to industrial consumers. 11. It is pertinent to state that, on imported goods, and at the time of clearance, the appellants are required to affix MRP as the goods are covered under the packaged commodity and therefore in the case of branded goods, the RSP was correctly affixed by the appellant as provided by the brand owners Wipro/HCL etc. The appellant being a dealer not a manufacturer of monitors, the RSP supplied by the brand owners was affixed and there is no dispute on the fact that the monitors are packaged commodity squarely covered under the LM Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maximum price at which the commodity in packaged form may be sold to the ultimate consumer and where such price is mentioned on package, there shall be printed on the packages the words "maximum or max. retail price" inclusive of all taxes or in the form MRP Rs- incl., of all taxes. Explanation : For the purposes of the clause maximum price in relation to any commodity in packaged form shall include all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be." Definition of "wholesale dealer" under Rule 2(w) is as under : "wholesale dealer" in relation to any commodity in packaged form means a dealer who does not directly sell such commodity to any consumer but distributes or sells such commodity through one or more intermediaries. Explanation : Nothing in this clause shall be construed as preventing a wholesale dealer from functioning as a retail dealer in relation to any commodity, but where he functions in relation to any commodity as a retail dealer, he shall comply with all the provisions of these Rules which a retail dealer is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es shall apply to any package containing a commodity if, - (a) the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry". 5. When we read these rules along with provisions of Section 4A of the Act, it would be clear that where there is a general exemption like Section 34 under the SWM (PC) Rules such goods and/or packages of such goods shall not be covered by Section 4A(1) and (2) of the Act. However, all such packages which are covered under Chapter II, more particularly under Rule 6(1)(f), Rules 15, 16 and 17, would be governed under Section 4A as such packages are required to declare the retail sale price on the packages. The packages covered by Rule 29 would be outside the purview of the retail sales as under that Rule retail prices are not required to be mentioned on the package. However, again those packages which enjoy the exemption under Rule 34 shall also be outside the scope of Section 4A of the Act as the Rules do not apply to the said packages." The above ratio squarely applicable to the facts of the present case, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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