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TMI Blog2016 (10) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the full active knowledge of the fact that the goods were being sold at the higher price (MRP) than what they had declared to the customs. The decision in the case of PLANET SPORTS PVT. LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI [2004 (10) TMI 209 - CESTAT, NEW DELHI] relied upon where it was held that it was incumbent upon the importer to declare the MRP at which the imported goods were to be sold and not any other price and demand of duty, confiscation and penalty were upheld. The demand of differential duty upheld - penalty reduced to ₹ 6,97,212/- - appeal disposed off - decided against appellant, with modification in the amount of penalty. - C/426/2006-DB - - - Dated:- 6-10-2016 - Shri S. S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member Mr. P. Gopinatha Menon, Advocate For the Appellant Mr. J. Harish, AR For the Respondent ORDER Per Ashok K. Arya 1. The appellant viz., M/s. Mathewsons Exports Imports (P) Ltd. are in appeal against the Order-in-Original dated 30.5.2006 passed by Commissioner of Customs, Cochin whereunder demand for differential duty of ₹ 34,86,064/- was confirmed against the appellants on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. (viii) The learned advocate in support relies on the following decisions: a. Collector of Central Excise vs. Chemphar Drugs Liniments: 1989 (40) E.L.T. 276 (S.C.) b. Pushpam Pharmaceuticals Company vs. Collector of Central Excise: 1995 (78) E.L.T. 401 (S.C.) c. Uniworth Textiles Ltd. vs. CCE, Raipur: 2013 (288) E.L.T. 161 (S.C.) d. MRF Ltd. vs. CCE, Madras: 1997 (92) E.L.T. 309 (S.C.) e. I.T.C. Ltd. vs. CCE, New Delhi : 2004 (171) E.L.T. 433 (S.C.) 4. On behalf of Revenue, learned AR, Shri J. Harish has reiterated the findings given by the lower Revenue authorities. He further inter alia submits as under: i. Whole operation of the appellant in this case is that there has been facilitation and involvement of the appellant in avoiding payment of right duty/taxes to the Revenue. The contents of show-cause notice and the Order-in-Original indicate that the importer has been aware of all the operations and the activities of distributors whereunder the goods were sold with increased price, which was double or more than double the MRP declared to the department by the importer-appellant. ii. The learned AR submits that there is no need o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chin. Investigations have revealed that the MRP has been mis-declared by the importer, by M/s. Mathewsons Exports Imports Pvt. Ltd. in their Bills of Entry at the time of presentation . 6.1 Further the show-cause notice dated 11.7.2005 in its para 2 to 5 states as follows: 02. The Government of India vide Ministry of Commerce Industry, Department of Commerce Notification No.44 (RE-2000)1997-2002 dated 24.11.2000 added paragraph 5 to Chapter 1A: General Notes regarding Import Policy of the ITC (HS) Classification of Export and Import items, 2002-2007 (Public Notice 3/2001 and 4/2001 issued by Commissioner of Customs, Cochin) which stipulates that all pre-packaged commodities imported into India shall in particular carry the following declarations: a. Name and address of the importer b. Generic or common name of the commodity packed. c. Net quantity in terms of standard units of weights and measures. If the net quantity on the imported package is given in any other unit, its equivalent in terms of standard units shall be declared by the importer. d. Month and year of packing in which the commodity is manufactured or packed or imported. e. Maximu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after giving necessary abatement as permitted under law. The facts indicate that in all the cases of imports made by the appellant, the MRP declared to the customs has been lower than the MRP fixed on the labels for the purpose of price being/to be charged from the ultimate buyers. The MRP declared to the customs for imports made during different periods has certainly been lower than the MRP fixed/charged from ultimate buyers by putting different labels. The appellant generally declared the MRP as ₹ 5/- for his imports whereas the actual MRP meant for final consumer has been in the range of ₹ 10/- and above. Either there were no MRP labels affixed or these labels were replaced later with higher MRP labels by the appellant in association with his distributors. These details have been mentioned in the show-cause notice issued to the appellant and Mr. Baby Mathew, Managing Director of the appellant-company viz., M/s. Mathewsons Imports Exports (P) Ltd. 6.3 The appellant submits that non-putting of MRP stickers has been an inadvertent omission on the part of the foreign suppliers and it is the appellant, who sought the permission from the customs to fix the stickers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter to the ultimate consumer, namely M/s. Aishwarya Trade Links and M/s. Plus One Agencies have also admitted that the MRP of the soaps at their end was ₹ 10/- during the period 2003. M/s. Mathewsons Agencies, the sole distributors for the importer in Cochin who had received the consignments from the importer directly have also admitted that the soaps were sold by them at a price ranging from ₹ 6.50 to ₹ 7/-, but had categorically stated that they did not notice any stickers of MRP ₹ 5/- on the soaps supplied to them and were not at all aware of the MRP of the imported soaps. 51. 52. 53. 54. In his statement Shri Biju Mathew, partner of M/s. Mathewsons Agencies, stated that they were the only dealers for the GIV and Harmony Brands of soaps imported by M/s. Mathewsons Exports Imports and that their major distributors were M/s. Plus One Agencies at Ernakulam, M/s. Kalattil Agencies, Trivandrum and M/s. Priya Automobiles, Calicut. He further stated that he was not aware of the MRP of ₹ 5/- declared by the importer before Customs and had not noticed the MRP of ₹ 5/- on the soaps. He also stated that his selling price was &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tricate themselves out of the situation and escape penal consequences. In the light of the above discussions, I conclude that the soaps imported by M/s. Mathewsons Exports Imports had indeed been sold in the market at a higher MRP than that declared before Customs at the time of import. I also conclude that the MRP as detailed in the table annexed to the show cause notice for the respective periods is the actual MRP at which sale was made during the periods mentioned therein. 6.5 Considering above discussions, we are of the considered view that the appellant is liable for payment of differential duty confirmed by the impugned order. We also take support for our conclusions made above from the CESTAT, Delhi s decisions in the cases of Planet Sports Pvt. Ltd. (supra) and Media Industries Ltd. (supra). In this regard, we refer to the observations made by the CESTAT, Delhi in case of Planet Sports Pvt. Ltd. (surpa) in its para five, which are given below: 5. We have considered the submissions of both sides. Section 3(1) of the? Customs Tariff Act provides for the levy of Additional Customs Duty on goods imported equal to the excise duty for the time being leviable on a like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of duty on that date and time and subsequent reduction in prices for whatsoever reason cannot be a matter of concern to the Central Excise department in so far as the liability to payment of excise duty was concerned. 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 Appellants had cleared cigarettes manufactured by them after paying excise duty on the basis of the Maximum Retail Price printed by them on each cigarette packet. In the present matter the Appellants have changed the MRP. We, therefore, hold that there was a misdeclaration of MRP at the time of import and as such we uphold the demand of duty, liability of the impugned goods for confiscation and liability of the Appellants for penal action. We uphold the demand of differential duty. 6.5.1 Further, we refer to the observations made by the CESTAT, Delhi in its decision in case of Media Industries Ltd. (supra). The CESTAT in the said decision in para six observes as under: 6. In terms of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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