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TMI Blog2024 (4) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1.00 lakh has been sold in retail to consumers at the direction of OEMs. The Department's allegation is that the differential duty on sale directly to the consumers in retail is more than Rs. 1.00 lakh. Therefore, only to ascertain the liability on account of retail sale to consumers, the matter is remanded to the adjudicating authority. However, considering the facts and circumstances of the case, the penalty is not imposable on the appellants.
The impugned order is modified by setting aside the demand on clearances of goods to OEMs i.e. industrial consumers and confirming the demand with interest for clearances to retail consumers other than OEMs. Penalty is set aside.
Conclusion - The goods sold to industrial consumers are exempt from MRP-based assessment under the Legal Metrology (Packaged Commodities) Rules, 2011.
Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... segment viz. M/s. Volvo Buses India Pvt. Ltd.; M/s. Automobile Corporation of Goa Ltd.; M/s. Tata Marcolo Dharwad and M/s. Ashok Leyland. In a few stray cases, such goods are sold to dealers in retail on the instruction of OEMs. He has submitted that though the appellants had initially filed declarations in the respective Bills of Entry claiming that the imported goods would be for industrial use but on the insistence of the Departmental officers, they declared RSP, which they were not required to do in respect of sales to industrial consumers. The goods imported under Bill of Entry No. 8138641 dated 05.10.2012 were sold directly to bus manufacturers and not for retail sale; however, they filed MRP declaration to avoid delay in assessment. Similarly, in the case of Bill of Entry No. 931190, the goods were directly sold to manufacturers and though MRP affixation is not necessary but on the insistence of the Customs, they have no option but to affix MRP on the imported goods. Similar imports were made during the period in question. Further he has submitted that in response to the show-cause notice issued on 30.07.2015 demanding differential duty of Rs. 42,04,845/-, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8519 imported by the appellant and majority of which cleared to industrial consumers be assessed to duty i.e. additional duty of customs (CVD) applying MRP based assessment under Rule 4A of the Central Excise Act, 1944. 7. Undisputed facts are that the said DVD players and flipdown LCD monitors falling under CTH 8528, 8521 and 8519 are notified vide Notification No. 49/2008-CE(NT) dated 24.12.2008 liable to be assessed under Section 4A of Central Excise Act, 1944 on MRP based assessment. However, during the relevant period, it is also not in dispute that the appellant had cleared the goods to OEMs i.e. industrial consumers in bulk and only in stray cases, minuscule quantity was sold in retail to consumers at the direction of the OEMs. The Revenue has alleged that since the appellants are not manufacturers but traders, the imported DVD players and flip-down LCD monitors are liable to be assessed under MRP based assessment, whereas the claim of the appellant is that since the goods are imported and cleared to industrial consumers i.e. OEMs in bulk, MRP based assessment is not applicable to them. We find that this issue has been addressed by this Tribunal in the case of Starlit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components, bulk imports, etc. would invariably undergo further processing or removal before they are sold to consumer and in respect of these imports, the labelling requirements prescribed under Notification No. 44(RE-2000)97-2002 dated 24-11-2000 shall not apply. It is also not in dispute that the goods are specified in Third Schedule to the Central Excise Act, 1944 and the activities undertaken by the appellant importer amounts to "manufacture" under Section 2(f) of the said Act. In these circumstances, it is clear that the appellants were not required to discharge duty liability of additional Customs duty on the basis of MRP. Accordingly, we set aside the impugned order demanding the differential duty inasmuch as there was no requirement of declaring MRP. As a result, the confiscation of goods under Section 111(d) and (m) of the Customs Act, 1962 are also not justified. Consequently, the question of payment of redemption fine would not arise and also no penal consequence would follow under Section 112(a) ibid. 8. Similar view was subsequently held in the case of Remi Sales & Engg. Ltd. , wherein the Tribunal has held as under:- 3. We have perused the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant are liable for duty under Section 4 of CEA, 1944. We thus set aside the impugned order and allow the appeal with consequential reliefs. 9. Following the above judgment, we are of the view that the imported goods viz. DVD players and Flip-down LCD monitors which are cleared to OEMs i.e. industrial consumers in bulk are not liable to be assessed under MRP based assessment under Section 4A of the Central Excise Act, 1944; hence the differential duty on this count demanded from the appellant and confirmed in the impugned orders is not sustainable. However, the appellant had admitted that a minuscule quantity involving differential duty of Rs. 1.00 lakh has been sold in retail to consumers at the direction of OEMs. The Department's allegation is that the differential duty on sale directly to the consumers in retail is more than Rs. 1.00 lakh. Therefore, only to ascertain the liability on account of retail sale to consumers, the matter is remanded to the adjudicating authority. However, considering the facts and circumstances of the case, we are of the view that penalty is not imposable on the appellants. 10. In the result, the impugned order is modified by setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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