TMI Blog2024 (12) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... t represent the actual retail price at which the goods are sold. Moreover, the requirement is to ascertain the actual RSP at or about the time of removal of the goods to be valued. Therefore, a Price list of Feb 2005 cannot in any event be uniformly applied through out the period from 2005 to 2009. It is settled law as laid down in CCE v Bell Granito Ceramics Ltd [ 2008 (11) TMI 99 - CESTAT, AHMEDABAD] , that there is no requirement under Section 4A that the MRP on each package of goods has to be identical. Accordingly, a manufacturer can affix different MRPs on different packages of the same kind of goods. If the MRP on a given package has to be rejected under Section 4A (4) and redetermined under Rule 4 of the said Rules of 2008, then with regard to every package, it would be necessary to ascertain the actual RSP in the retail market at or about the time of removal of the package in question. An MRP indicated in a Price list of Feb 2005, which itself mentions that Prices therein are subject to revision without prior notice and ruling prices will be charged at the time of dispatch cannot be applied across the board for clearances made from 2005 to 2009. It is further noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of e-mails showing cash transactions. The show cause notice dated 27-3-2010 sought to reject the RSP declared on the goods and sought to re-determine the Retail Price by taking the MRP mentioned in a Price List effective from 23-2-2005 found with one of the Dealers, Krishna Ceramic Choice, Bangalore. Based on the Retail Price re-determined as per the said Price List, the Show Cause Notice demanded differential Central Excise duty of Rs. 9,19,34,781/- for the period 1-3-2005 to 31-3-2009 under the Proviso to Section 11A of the Central Excise Act 1944 along with interest under Section 11AB of the said Act and proposed imposition of penalties on the Appellants. 1.2 One more Show Cause Notice dated 17-7-2009 was issued for confiscation of 202 Boxes Tiles of value Rs.1,71,700/- and seized on 22-1-2009 at the Appellant s Kolkata Depot on the ground that the RSP was not declared on the goods. 1.3 The Appellants replied to and contested the said Show Cause Notices by Reply dated 18-11-2010 by which it was submitted that it was not established that the Tiles were sold at prices higher than the RSP declared thereon; that it was open to the Appellant to affix different Retail Prices on diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions namely that statements of dealers and builders relied upon in the show cause notice do not establish sale of goods at prices higher than the RSP declared on the goods and that statements of appellant are exculpatory; that computer print-outs of e-mails showing cash transactions are not admissible in evidence as requirements of Section 36B of the Central Excise Act 1944 not shown to have been satisfied; it was further submitted that the determination of the Retail Price proposed in the Show Cause Notice and confirmed in the Order-in-Original is liable to be set aside as being not in conformity with the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008. They relied upon the following decisions in support of their arguments:- CC v Savi Vision P. Ltd 2016 (337) ELT 331 J K Cigarettes Ltd v CCE 2009 (242) ELT 189 Basudev Garg v CC 2013 (294) ELT 353 Andaman Timber Industries v CC 2015 (324) ELT 641 (SC) Anvar P. V. vs. P. K. Basheer 2017 (352) ELT 416 (SC) Agarvanshi Aluminium Ltd v CC - 2014 (299) ELT 83 Junaid Kudia v CC (2024) 16 Centax 503 CC v Junaid Kudia 2024 (338) ELT 529 (SC) CCE v Bell Granito Ceramics Ltd 2009 (235) ELT 171 3. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who have stated about part of the price having been recovered by the dealers in cash. There is no statement of the buyers from such dealers to the effect that the buyers paid any amount over and above the RSP declared on the goods. There is no allegation that the RSP declared on the goods was altered and increased by the Dealers. It is therefore inconceivable that any buyer would pay a price in excess of the RSP declared on the goods. As held in CC v Savi Vision P. Ltd 2016 (337) ELT 331, in absence of any inquiry with the Buyers from the dealers whether they paid a price higher than the RSP declared on the goods, it cannot be concluded that the goods were sold at price higher than that declared on the goods. 4.3 It is seen that section 4A (4) of the Central Excise Act 1944 is attracted only i) Where the goods are removed from the place of manufacture without declaring the RSP of such goods on the packages, or ii) Where the RSP declared on the packages is not the RSP as required to be declared under the provisions of Standards of Weights and Measures (Packaged Commodities) Rules 1977, or iii) The manufacturer tampers with, obliterates or alters the RSP declared on the packages of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Packaged Commodities) Rules, 1977. If the said dealer has sold one brand at price higher than the RSP declared on the goods, at most he would be liable for action in accordance with the Standards of Weights and Measures Act and the Rules thereunder. However, that would not make the Retail price declared on the goods to be not in accordance with the requirement of Standards of Weights and Measures (Packaged Commodities) Rules 1977. 4.5 It is further observed that the Show Cause Notice has relied on Statements of some Builders who had purchased the Tiles, in which they have stated that they made the payment of the price mentioned in the Appellant s Invoices by cheques but received lesser quantity of tiles than mentioned in the Invoices. In our view, the said statements do not inspire any confidence as it is impossible that the said Builders would pay for a higher quantity than the quantity received by them; it is not their say in the Statements that they ever complained to the Appellant that quantity supplied to them was short or that they adopted any legal proceedings against the Appellant for alleged short supply of the Tiles. It is further noticed that the statements of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it is not shown that the said alleged cash transactions represent receipt of price over and above the RSP declared on the goods. Further, in absence of it being shown that requirements of Section 36B of the Central Excise Act 1944 were satisfied in respect of the said Computer print-outs, the same are not admissible in evidence as held in the judgments cited supra. 4.8 It is further observed that even if it is assumed that the RSP was liable to be determined/ ascertained under Section 4A (4), even so, the determination proposed in the Show Cause Notice and confirmed in the Order-in-Original is not in conformity with the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008. This is for the reason that Show cause Notice dated 27-3-2010 sought to reject the RSP declared on the goods and sought to re-determine the Retail Price by taking the MRP mentioned in a Price List effective from 23-2-2005 found with one of the Dealers, Krishna Ceramic Choice, Bangalore. However, this is not the manner prescribed for ascertainment of the Retail price under the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008. We find that under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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