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TMI Blog2024 (1) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal as it noticed that two Division Benches of the Tribunal in Acme Ceramics vs. Commissioner of Central Excise, Rajkot 2014 (304) E.L.T. 542 (Tri. - Ahmd.) and Schneider Electrical India (P) Ltd. vs. Commissioner of C. Ex., Nashik 2014 (311) E.L.T. 113 (Tri. - Mumbai) had expressed contrary views. The Ahmedabad Bench of the Tribunal in Acme Ceramics held that in the absence of rules for ascertainment of Retail Sales Price RSP having been notified by the Central Government as required under sub-section (4) of section 4A of the Central Excise Act, 1944 the Central Excise Act, it was impermissible for the Revenue officers to make such an "ascertainment" by resorting to best judgment. The Mumbai Bench of the Tribunal in Schneider Electrical, on the other hand, took a contrary view holding that the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 the 2008 Rules which provided for the manner of ascertainment of RSP, though notified on 01.03.2008, were procedural in nature and, therefore, applicable retrospectively to all pending proceedings for the period from 14.05.2003, when sub-section (4) of section 4A of the Central Excise Act was substit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajkot) are stated. 7. M/s. Nice Ceramics Limited the appellant is a manufacturer of ceramic tiles and has a factory located at Morbi in the State of Gujarat. The products manufactured by the appellant i.e. tiles are subject to the provisions of the Standard of Weights & Measures Act, 1976 the 1976 Act and require affixation of RSP to be written as the Maximum Retail Price MRP on the retail package. As a consequence, the assessable value of the tiles manufactured and cleared by the appellant is required to be determined not in terms of the usual valuation provision contemplated in section 4 of the Central Excise Act, but in terms of section 4A of the Central Excise Act. The appellant printed and declared MRP on the packing of the products. It is stated by the appellant that all clearances have to be assessed under section 4A of Central Excise Act by applying the MRP of the product as applicable at Morbi and the assessable value has to be determined by granting abatement of 45% in terms of the Notification dated 01.03.2002. Thus, if the MRP of the product declared at the factory gate was Rs. 100/-, the assessable value on which excise duty is payable would be Rs. 55/-, after grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason given is that in Schneider Electrical the difference of opinion between the two members constituting the Division Bench had been referred to a third member and so the strength of the Bench should be taken as three. In support of this contention, learned special counsel placed reliance upon a decision of the Supreme Court in Trimurthi Fragrances (P) Ltd. vs. Govt. of N.C.T. of Delhi 2022 (382) E.L.T. 149 (S.C.) and upon a decision of the Larger Bench of Tribunal in Larsen & Toubro Ltd. vs. Commissioner of Service Tax, Delhi 2013 (32) S.T.R. 410 (Tri. - Del.). 11. Shri Devan Parikh, learned senior counsel and Shri Vipin Jain, learned counsel, however, submitted on behalf of the appellants that there is no necessity of referring the matter to a Bench of more than three members as the decision of the Tribunal in Schneider Electrical is a decision rendered by a Division Bench and not by a Bench comprising of three members. In support of this contention, reliance has been placed upon the Constitution Bench judgment of the Supreme Court in Pankajakshi vs. Chandrika 2017 (345) E.L.T. 438 (S.C.) and a decision of the Tribunal in Alberto Bestonso vs. Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er pursuant to a conflict opinion in a decision by a Division Bench, the conflict is referred to a Third Member of this Tribunal for resolution, the resultant judgment must be considered the judgment of a Full Bench, as if it were a judgment of a Larger Bench (three ld. Member) sitting en banc." 16. Learned counsel for the appellant, however, referred to a Constitution Bench decision of the Supreme Court in Pankajakshi wherein it has been observed that a reference to a third member does not enlarge the coram of the Bench. 17. Following the aforesaid decisions of the Constitution Bench, a learned member of the Mumbai Bench of the Tribunal in Alberto Bestonso also observed: "4. I have carefully considered the submissions made by both the sides and perused the records. I find that the issue can be decided on the basis that whether the appellant is eligible for immunity from penalties in case when the main appellant"s case was settled before the Settlement Commission. In this regard, I find that there are various contrary decision on the issue. As regard the decision of S.K. Colombowala (supra), I find that this decision was with a majority of two member against the minority of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. Explanation 1. - For the purposes 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, as the case may be. Explanation 2. - Where on any excisable goods more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section"." 21. Section 4A, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes 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, as the case may be, 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 package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. Explanation 2. - For the purposes of this section,- (a) where on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the RSP of such goods in the prescribed manner which would then be deemed to be the RSP for the purposes of section 4A. 31. The expression "prescribed" used in sub-section (4) of section 4A is defined in section 2(g) as under: "2(g) "prescribed" means prescribed by rules made under this Act;" 32. In terms of section 37 of the Central Excise Act, it is only the Central Government which is empowered to make Rules to carry into effect the purposes of the Act. Section 38(1) further requires that all Rules made under the Act shall be published in the Official Gazette. 33. Though sub-section (4) of section 4A read with section 2(g), section 37 and section 38 of the Central Excise Act makes it clear that the power to prescribe the manner of ascertainment of RSP vests only with the Central Government, this legal position is also evident and explicit from the Notes to clause 129 to Finance Bill 2003, Memorandum regarding delegated legislation, Explanatory Notes to Finance Bill 2003 and the CBEC Circular dated 30.04.2003. They are reproduced: Notes to clause 129 to Finance Bill, 2003 "Clause 129 seeks to substitute sub-section (4) of Section 4A of the Central Excise Act so as to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cases shall be determined in the manner prescribed by the Government. Consequently, the Government will only need to prescribe the manner for ascertaining the RSP, while the actual ascertainment of RSP is delegated to the field officers." 34. In exercise of the powers conferred by section 37 read with sub-section (4) of section 4A, the Central Government made the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, which have been referred to as the 2008 Rules. 35. These rules were notified by a notification dated 01.03.2008 and they came into force from the date of their publication in the Official Gazette i.e. 01.03.2008. They are reproduced below: "Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 In exercise of the powers conferred by section 37 read with sub-section (4) of section 4A of the Central Excise Act, 1944 (1 of 1944), the Central Government hereby makes the following rules, namely :- 1. (1) These rules may be called the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008. (2) They shall come into force on the date of their publication in the Official Gazette. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, then such increased retail sale price shall be taken as the retail sale price of all goods removed during a period of one month before and after the date of removal of such goods: Provided that where the manufacturer alters or tampers the declared retail sale price resulting into more than one retail sale price available on such goods, then, the highest of such retail sale price shall be taken as the retail sale price of all such goods. 6. If the retail sale price of any excisable goods cannot be ascertained under these rules, the retail sale price shall be ascertained in accordance with the principles and the provisions of section 4A of the Act and the rules aforesaid." (emphasis supplied) 36. Shri Devan Parikh, learned senior counsel appearing for the M/s. Asian Tiles Ltd. made the following submissions:- (i) The rules cannot be applied retrospectively in the absence of power to make the rules retrospectively and in this connection placed reliance on the judgments of the Supreme Court in Union of India and Others vs. G.S. Chatha Rice Mills and Another (2021) 2 SCC 209 and Municipal Corporation of Greater Mumbai and Other vs. Property Owners Association and Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. 38. Shri P.R.V. Ramanan, learned special counsel appearing for the department made the following submissions, apart from the preliminary submission that has already been considered: (i) The date of discovery of the contravention, as enumerated in sub-section (4) of section 4A, should be the relevant date for reckoning so far as the applicability of the 2008 Rules are concerned; (ii) Sub-section (4) of section 4A mentions only "ascertaining" the RSP in the prescribed manner and not "determining" the RSP; (iii) The process of ascertainment in accordance with the 2008 Rules is purely procedural in nature. Thus, the 2008 Rules, being procedural in nature, are retrospective and can be applied to all proceedings which are pending after the 2008 Rules had been introduced. In this connection reliance has been placed on the judgment of the Supreme Court in ITW Signode India Ltd. vs. Collector of Central Excise 2003 (158) E.L.T. 403 (S.C.); (iv) In contrast to the statues dealing with substantive rights, statues dealing merely with matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible and in this connection reference has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the actual RSP in such cases. It was in 2003 that the existing sub-section (4) of section 4A was substituted w.e.f. 14.05.2003. Apart from providing for confiscation of goods, the substituted sub-section (4) of section 4A also provided that "the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section". 42. Section 2(g) defines "prescribed" to mean "prescribed by rules made under this Act". Section 37 relates to power of the Central Government to make rules and provides that the Central Government may make rules to carry into effect the purposes of the Act. It is in the exercise of the powers conferred by section 37 read with sub-section (4) of section 4A that the Central Government made the 2008 Rules on 01.03.2008 and rule 4 provides for ascertaining the RSP of goods. The Notes to clause 129 to the Finance Bill 2003, in so far as the substitution of sub-section (4) of section 4A is concerned, also state that the Central Government may ascertain the RSP in the manner as may be prescribed. The Memorandum regarding delegated legislation also provides that sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty tax on the basis of "capital value" of the building. Section 154 (1-A) specifically provided that the "capital value" of the building shall be fixed by the Commissioner in the manner provided therein. However, clause (e) of section 154 (1-A) provided that such other factors as may be specified under sub-section (1-B) should also be considered. Sub-section (1-B) of section 154 (1-A) enabled the Commissioner, with the approval of Standing Committee, to frame rules. The rules were framed late, as in the present case, and a similar argument was raised that since the section enables assessment of property tax on the basis of capital value, it did not matter whether the rules existed or not, more particularly in view of the provisions of section 154(1-A). The Supreme Court rejected this submission and held that as the rules came into force on 20.03.2012, the levy and computation of property tax on capital value will be available on 20.03.2012 and not with any retrospective operation. The relevant portion of the judgment is as follows: "60. We now turn to the issue regarding retrospectivity of the Capital Value Rules of 2010. The factual narration relied upon by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra), cited on behalf of the Union of India and DIAL and MIAL on the charges or tariff levied by a service or facility provided are of no assistance in interpreting Section 22A. It is a settled principle of statutory interpretation that any compulsory exaction of money by the Government such as a tax or a cess has to be strictly in accordance with law and for these reasons a taxing statute has to be strictly construed. As observed by this Court in Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla & Ors. (supra), it has been consistently held by this Court that whenever there is compulsory exaction of money, there should be specific provision for the same and there is no room for intendment and nothing is to be read or nothing is to be implied and one should look fairly to the language used. Looking strictly at the plain language of Section 22A of 1994 Act before its amendment by the 2008 Act, the development fees were to be levied on and collected from the embarking passengers "at the rate as may be prescribed". Since the rules have not prescribed the rate at which the development fees could be levied and collected from the embarking passengers, levy and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the rules and subject to such maxima as may be prescribed, to levy fees on the agriculture produce bought and sold by licensee in the market area. The Supreme Court, after noticing that the State Government had not fixed any maxima, held that it would not be permissible for the Market Committee to fix any fees under section 11. The relevant observations are: "It will be noticed that s. 11 provides for levy of fees to be fixed by the market committee, subject to such maxima as may be prescribed by the Rules and this fee is to be charged on the agricultural produce bought and sold. There are thus two restrictions on the power of the market committee under s. 11; the first is that the fee fixed must be within the maxima prescribed by the Rules and naturally till such maxima are fixed it would not be possible for the market committee to levy fees, and the second restriction is that fees have to be charged not on the produce brought into but only on such produce as is actually sold. *****. As we read s. 11, there is no doubt that the State Government is expected to specify the maxima within which the market committee shall fix fees and until such maximum is specified by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, would apply prospectively. 55. At this stage, distinction between substantive provisions and procedural provisions needs to be understood. 56. The distinction between substantive law and procedural provisions has been enumerated in Black"s Law Dictionary (Sixth Edition paragraph 1203) as follows: "As a general rule, laws which fix duties, establish rights and responsibilities among and for persons, natural or otherwise, are "substantive laws" in character, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are "procedural laws"." 57. In Salmond"s Jurisprudence (Twelfth Edition - paragraph 462), the distinction between substantive law and law of procedure has also been indicated in the following manner: "What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet - using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. It is, therefore, concerned with the quantification of duty. A rule which prescribes the basis of duty cannot be considered to be merely procedural, more so when under sub-section (4) of section 4A, the RSP that is determined under the rules shall be deemed to be the RSP for the purposes of section 4A. Rule 4 which provides for determining the RSP is, therefore, a rule which fixes a measure or value of RSP and would have to be considered as a "core component" of tax. 60. This is what was observed by the Supreme Court in Govind Saran Ganga Saran. While examining the point at which tax may be imposed under the provisions of the Bengal Finance (Sales Tax) Act, 1941, the Supreme Court observed that the single point at which the tax may be imposed must be a definite ascertainable point so that both the dealer and the Sales Tax authorities clearly know the point at which the tax is to be levied and it is in this context that the Supreme Court observed: "6. The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had held that service tax can be levied on the service component of any contract involving service with sale of goods and that computation of service component is a matter of detail and not a matter relating to imposition of service tax. It was, therefore, held to be procedural and merely because no rules had been framed for computation would not mean that service tax could not be leviable. The Delhi High Court had placed reliance upon the decision of the Supreme Court in Mahim Patram (P) Ltd. vs. Union of India and Others (2007) 3 SCC 668 to arrive at the proposition that even when rules are not framed for computation of tax, tax would still be leviable. The Supreme Court held that the judgment of the Supreme Court in Mahim Patram would not be applicable as many decisions had earlier taken the view that where no machinery for assessment exists, it would not be open to the authorities to arbitrarily asses the tax. The Supreme Court, therefore, helds that as the Finance Act did not lay down a machinery to levy and assess service tax on works contracts, service tax could not be levied. The relevant portion of the judgment of the Supreme Court is reproduced below: "32. We are afraid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of transfer of property in goods as well as labour and services." (emphasis supplied) 64. The aforesaid discussion leads to be inevitable conclusion that the 2008 Rules are not procedural in nature. In this view of the matter it is not necessary to examine the contention of the learned special counsel appearing for the department that statutes dealing with merely matters of procedure are presumed to be retrospective, unless such a construction is textually inadmissible, as noted by Justice G.P. Singh in "Principles of Statutory Interpretation". Thus, the 2008 Rules are not procedural in nature and cannot, therefore, be given any retrospective effect. Retrospectivity 65. The issue as to whether the 2008 Rules would apply retrospectively can also be examined from another aspect, namely as to whether sub-section (4) of section 4A, which was substituted on 14.05.2003, enables the Central Government to prescribe the 2008 Rules retrospectively. A plain reading of sub-section (4) of section 4A does not give this indication. Thus, the conferment of power to prescribe the manner in which the retail sale price of the goods shall be ascertained has not been given a retrospective effect, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de applicable by sub-section (2) of Section 8A, are to ensure Parliamentary oversight. But that does not enable the Central Government to exercise the power under section 8A with retrospective effect. 106. In Federation of Indian Minerals Industries vs. Union of India, a three judge Bench of this Court formulated the principles on the subject. Justice Madan B. Lokur observed that the power to frame subordinate legislation is not retrospective unless it is authorized expressly or by necessary implication by the parent statute. The Court observed: "26 ...... The relevant principles are: (i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implication, authorises it to do so. Hukam Chand v. Union of India [Hukam Chand v. Union of India, (1972) 2 SCC 601] and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana [Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620]. (ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopting a reasonable/best judgment method to make section 4A operational and that the 2008 Rules merely provided guidelines to the assessing officers. The learned member (technical) placed reliance upon the decision of the Supreme Court in Mahim Patram to support this view and the observations made by the learned member (technical) are: "In view of above judgment of Hon"ble Supreme Court as also in our considered view during the period 14th May, 2003 when law stipulated prescribing Rules for determining MRP in specified situations to 1st March 2008, when Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 came into force, Retail Sale Price can be determined based upon the reasonable/best judgment of the assessing officer, consistent with the provisions of Section 4A. There can be no prohibition to the assessing officer to keep in mind the Rules notified on 1-3-2008 if assessment is being done after 1-3-2008 and is for period prior to 1-3-2008." 70. The learned third member, before whom the difference of opinion was referred, relied upon the decision of the Supreme Court in Commissioner of Wealth Tax vs. Sharvan Kumar Swarop & Sons (1994) 6 SCC 623 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined by using reasonable means." 73. It is seen that the learned member (technical) constituting the Division Bench mainly placed reliance upon the decision of the Supreme Court in Mahim Patram and the learned third member to whom the matter was referred mainly placed reliance upon the decision of the Supreme Court in Sharvan Kumar. 74. As noticed above, the Supreme Court in Larsen & Toubro had examined whether service tax can be levied on indivisible works contracts prior to the introduction on 01.06.2007 of the Finance Act 2007 which expressly makes such works contracts liable to service tax and held that the decision of the Supreme Court in Mahim Patram would have no application to cases where there is a complete absence of a machinery provision, as Mahim Patram was a case where the rules framed under the State Act were meant to be part and parcel of the Central Act and it was not a case where there was complete absence of rules. The Supreme Court, therefore, distinguished Mahim Patram. The Supreme Court also held that the decision of the Delhi High Court in G.D. Builders, against which the appeal had been filed before the Supreme Court, had placed reliance on the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are persuaded to the view that Rule 1BB is essentially a rule of evidence as to the choice of one of the well accepted methods of evaluation in respect of certain kinds of properties with a view to achieving uniformity in valuation and avoiding disparate valuations resulting from application of different methods of valuation respecting properties of a similar nature and character. The view taken by the High Courts, in our opinion, cannot be said to be erroneous." (emphasis supplied) 77. This decision of the Supreme Court in Sharvan Kumar was considered by the Supreme Court in Commissioner of Income Tax 5 Mumbai vs. Essar Teleholdings Ltd (2018) 3 SCC 253. In the appeals before the Supreme Court, the issue that had arisen for consideration was whether rule 8D of the Income Tax Rules is prospective in operation as held by the High Court or it is retrospective in operation as contended by the revenue. In paragraph 9 of the judgment, the Supreme Court noted the contentions of the appellant and the said paragraph is reproduced below: "9. Learned counsel for the appellant (revenue) submit that provisions of Section 14A being clarificatory in nature and Rule 8D is a procedural provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g has been stated: "17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The Circular Letter dated 752003 was given a prospective effect. The father of the respondent died on 1952000. There is nothing to show that even Circular dated 98-2000 had been given retrospective effect. In any view of the matter, as the State of Jharkhand in the Circular Letter dated 752003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15102000 i.e. the date from which the State of Jharkhand came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly. Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable." There is no indication in Rule 8D to the effect that Rule 8D intended to apply retrospectively. 48. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute and looking into the nature and purpose of subsection (2) and subsection (3) of Section 14A as well as purpose and intent of Rule 8D coupled with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the rules prescribing the rate at which development fees was to be levied." ( emphasis supplied ) 81. In the present case, the words used in sub-section (4) of section 4A are "as may be prescribed" and not "subject" to the rules. The decision of the Supreme Court in Sharvan Kumar would not be applicable and what would be relevant in the present case in the decision of the Supreme Court in Consumer Online Foundation. 82. Reliance placed upon the decision of the Supreme Court in ITW Signode India by the learned special counsel for the department is misplaced. Section 11A of the Central Excise Act, 1944 was expressly amended retrospectively w.e.f. 17.11.1980 by the Finance Act, 2000 to cover cases of approved classification lists. The Finance Act also contained validating provisions by which all actions of assessment, notice and recovery taken by the officers of excise were specifically validated. It is in this context that the Supreme Court held that a curative and validating statute can be given a retrospective effect. This decision would, therefore, not help the department. 83. Learned special counsel appearing for the department also placed reliance upon the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure cannot confer any vested right upon a delinquent assessee who has misdeclared the RSP. 88. The distinction sought to be drawn by the learned special counsel between the two expressions, namely, "ascertainment" and "determination", while advancing the contention that mere "ascertainment" does not confer any vested right upon a manufacturer who violates sub-section (4) of section 4A, is purely artificial and cannot be accepted. The two expressions, namely, "ascertainment" and "determination" have been used interchangeably in and, therefore, there is no real distinction contemplated while using these two expressions in section 4A. While sub-section (4) states "ascertainment", the title of the 2008 Rules itself states "determination". Similarly, while rule 4 uses the term "ascertainment", rule 3 uses the term "determination". 89. Thus, for the reasons stated above, it is not possible to accept the views expressed by the Division Bench of the Tribunal in Schneider Electrical. Conclusions (i) When sub-section (4) of section 4A of the Central Excise Act, as substituted in 2003, specifically provides that the RSP shall be ascertained in the prescribed manner and the prescribed man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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