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TMI Blog2024 (7) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... modity) Rules (LMPCR), 2011. However, as per Rule 6 exemption is given to importers who are importing the goods for institutional or industrial consumers - Moreover, even after selling the product to various customers over a period of time without affixing MRP, the Authority entrusted under Legal Metrology (Packaged Commodity) Rules (LMPCR), 2011 to ensure compliance of the said provision of law has not raised any objection. Thus, the goods sold by the appellant cannot be considered as goods falling under Legal Metrology (Packaged Commodity) Rules (LMPCR), 2011 to adopt method of valuation as per Section 4A of the CEA, 1944 as held by Adjudication/Appellant Authority. Appeal allowed. - Hon'ble Mr. P. A. Augustian , Member ( Judicial ) And Hon'ble Mr. Pullela Nageswara Rao , Member ( Technical ) Mr. Rajesh Chander Rohra , Sr. Advocate Appeared for Appellant Ms. Yovini Rajesh Rohra , Advocate Ms. Deepa Rani , Advocate Mr. K. A. Jathin , Authorized Representative for Respondent ORDER Per : P. A. Augustian The issue in the present appeal is whether the appellant who had imported brushless DC/Axial fans meant for use in electronic industry for manufacturing electronic equipmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s........../ .incl., of all taxes after taking into account the fraction of less than fifty paise to be rounded off to the preceding rupee and fraction of above 50 paise and up to 95 paise to the rounded off to fifty paise; (n) section means a section of the Act; (o) Schedule means a Schedule appended to these rules; (P) standard package means a package containing the specified quantity of a commodity; (q) 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; (r) wholesale package means a package containing. (i) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or (ii) a commodity sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity to the consumer in similar quantities; or (iii) packages containing ten or more than ten retail packages provided that the retail packages are labelled as required under the rules. (s) words and expression used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944. . 35.1 At the same time it is true that there are some provisions in Legal Metrology Act and the PC Rules made thereunder which exempt application of provisions relating to declaration of Retail Sale Price on the packages based on the status of the consumer, viz., as Industrial Consumer/ Institutional Consumer. Thus, in cases where the goods are specified under the Notification issued under Section 4A of Central Excise Act, 1944 for claiming exemption from MRP based assessment, the assessee/importer has to demonstrate that they are exempt from application of provisions of LMA and LMPC Rules and the erstwhile SWMA and SWPC Rules. The relevant provision, namely, the Rule 3 of the LMPC Rules, 2011, which replaced identical provision in the erstwhile SWMPC Rules. 7. Learned Counsel further submits that the finding given by the Adjudication Authority is that the appellant had admitted that the goods are sold in retail as well as packing is also fit for retail sale, such finding is factually incorrect. There is no such admission or evidence to conclude that the appellant or any customer who had purchased the goods from appellant had resorted to retail sale. From the very b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dities) Rules, 1976 stipulates that all pre-packaged commodities imported into India shall carry the declaration of Retail sale price. Pre-packaged commodity means a commodity, which without the purchaser being present, is placed in a package so that the quantity of goods contained therein, has a pre-determined value and such value cannot be altered without opening the package. In this context, the term 'package' is to be construed as package containing such pre-package commodity. Therefore, only when such pre-packed commodities are sold in retail packages, the provisions of Standards of Weights and Measurement Act and Rules attract requiring declaration of retail sale price. Hence, it has to be decided first, whether the packages imported under the above bill of entry was a pre-packed commodity. 12. The importer has stated that fans imported are not individually contained in any package but packed in bulk which is not meant for retail sale but for industrial use. It is confirmed by photographs of the packages and usage of fans in the manufacture of other goods. Packages containing Bulk Supplies for personal as well as industrial use does not warrant MRP to be printed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for goods to be included under the assessment of Section 4(A) of the Central excise Act, it must comply with five factors. The relevant paragraph of the judgment is being reproduced herein: ....Even at the cost repetition the following would be the factors to include the goods in Sections 4-A(1) and (2) of the Act: (i) The goods should be excisable goods; (ii) They should be such as are sold in the package; (iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package; (iv) The Central Government must have specified such goods by notification in the Official Gazette; (v) The valuation of such goods would be as per the declared retail sale price on the packages less the amount of abatement. If all these factors are applicable to any goods, then alone the valuation of the goods and the assessment of duty would be under Section 4A of the Act. 14. Learned Counsel also drew our attention to the decision of this Tribunal in the matter of Sarvotham Care Ltd Vs. CCE, Hyderbad, 2012 (286) ELT 357 (Tri-Bang.), where it is held that even if a commodity notified under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les laid down in the earlier case. 17. Learned Counsel also relied the decision of the Hon ble Supreme Court in the matter of CCE Navi Mumbai Vs. Amar Bitumen Allied Products Pvt. Ltd. 2006 (202) E.L.T. 213 (SC). 18. Regarding valuation, the learned counsel submits that there is no method in the statute or provision to fix the retail price. In the absence of any such provision insisting the appellant to fix the retail price, and to follow the assessment based on the retailer price is unsustainable. Learned Counsel relied on the Judgment of the Hon ble Supreme Court in the matter of CCE, Kerala vs. Larson Toubro reported in 2015 (39) STR 913 (SC) where it is held that where there is no machinery for assessment, the law being vague, it would [not] be open to the assessing authority to arbitrarily assess to tax the subject. The Learned Counsel also relied on the decision of the Hon ble High Court of Punjab and Haryana in the matter of Famina Knit Fabs Vs. Union of India 2020 (371) E.L.T. 97 (P H). 19. The Learned Counsel for the appellant also submits that as per the impugned order, the MRP was fixed without following any procedure as laid down in the statues. The investigation Agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am constrained to observe that the representations made before DC (as reproduced in para 36.5.2 above) were factually incorrect and misleading. In the circumstances, the department is not prevented from re-opening the issue. 22. Heard both sides and perused the records. Regarding invoking the extended period of limitation, law is settled that for invoking the extended period of limitation, there must be a fraud or suppression of fact for evasion of duty. Since the respondent had accepted the finding of the Adjudication Authority on the very same issue for the previous period, there is no justification to invoke the extended period of limitation. Amended provision under Legal Metrology (Packaged Commodity) Rules (LMPCR), 2011 from 14.01.2007 has got no relevance in appellant s case. On merit, it is an admitted fact that goods imported by the appellant is falling under the category of goods under Legal Metrology (Packaged Commodity) Rules (LMPCR), 2011. However, as per Rule 6 exemption is given to importers who are importing the goods for institutional or industrial consumers. As per the law laid down by Apex Court in the matter of Jayanthi Food processing (Supra), valuation under se ..... 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