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TMI Blog2016 (3) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable by importers of like goods; the excise duty in accordance with proviso to section 3 of Central Excise Act, 1944 is the basic customs duty on assessed value, additional duty of customs equal to excise duty computed on the assessed value and customs duty or the maximum retail price (MRP) adjusted for abatement, as the case may be, and the special additional duty at 4% to countervail VAT charged by the sate governments on domestic sales. The special additional duty, being levied to countervail the tax burden in a domestic sale transaction, is not leviable on imports that are sold as such and hence a system of refund the special additional duty exists for availment upon production of proof of such trade. 2. Appeal no. E/1652/2010-MUM against order-in-appeal no. PIII/VM/106/10 dated 21 st May 2010 upholding the order of the lower authority confirming duty of Rs. 4,96,388/- for the period from March to April 2007 and appeal no. E/1902/10-MUM order-in-appeal no. PIII/VM/160/10 dated 9th July 2010 upholding the order of the lower authority confirming duty of Rs. 33,91,537/- for the period from March to December 2008 are also taken up for simultaneous disposal. 3. The original auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Standards of Weights & Measures Act, 1976. The grounds claim that the notification issued under section 4A of Central Excise Act, 1944 includes automobile parts. 6. Learned Counsel for appellant drew attention, inter alia, to the provisions of section 3 and 4A of the Central Excise act, 1944, section 3 of Customs Tariff Act, 1975 and Maharashtra Valued Added Tax Act, 2002. On the issue of liability to pay Special Additional Duty, the decisions of this Tribunal in Micro Inks v Commissioner of Central Excise & Service Tax, Daman [2014 (303) ELT 99 (Tri-Ahmd)] and M/s VVF Ltd v Commissioner of Central Excise, Belapur - 2014-TIOL-04-CESTAT-MUM were cited. It was also brought to our attention that in L'Oreal India Pvt Ltd v Commissioner of Central Excise, Raigad/ Thane [2014 (308) ELT 746 (Tri-Mumbai)] the Tribunal held that imported goods which underwent labeling prior to clearance for home consumption after landing in India being liable to additional duty did not amount to manufacture and excise duty thereon since additional duty equal to excise duty was leviable. On the issue of invoking extended period, the decision of the Tribunal in Alembic Ltd v Commissioner of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of discharge of VAT liability. The competent authority for implementation of VAT collection is the state government and it is not within the assigned responsibility of Central Excise authorities to ascertain compliance or to predicate the grant of exemption to such compliance. 11. The scheme of countervailing the VAT with the special additional duty under the Customs Tariff Act, 1975 also provides an exemption through the refund route for importers who place their imports into the market as such. That is an essential element to avoid double taxation. While the intent of countervailing is to ensure that imports are not placed in advantage vis-à-vis indigenous goods, the equity inherent in such countervailing will cease if the similar goods of EOUs are subject to special additional duty without recourse to the refund mechanism available to countervailed imports. The refund under notification no. 102/2007-Cus dated 14th September 2007 is administered by Customs authorities who collect the special additional duty on imported goods. Imported goods do not come within the ambit of VAT statutes of states and will not be leviable to VAT if used by the importer; countervaili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rements, including that of MRP. From the manner in which these proceedings have been initiated, it would appear that Revenue is convinced that the appellant has deliberately resisted the legal requirement of transaction value because of higher revenue implications. The mandate of the Standards of Weights & Measures Act, 1977 pre-date the incorporation of section 4A of Central Excise Act, 1944 which was given effect from 14th May 1997. The Central Excise Act, 1944 cannot, of its own, prescribe the mandate of maximum retail price with tax collection as the intent; such assessment can be notified only for such goods that are required to do so under the Packaged Commodity Rules, 1977. That these are, therefore, not options that may be exercised can be deduced from the confiscability of the goods for failure to declare 'retail sale price' on the package. 15. It is not the packaging that determines the applicability of mandate of affixing the 'retail sale price' but the product itself. Consequences of non-conforming packaging are not escapement from the mandate but the enforcement of penal detriment. The reasoning in the impugned order that bulk packaging will render the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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