2011 (5) TMI 714 - AT - Central Excise

Tribunal Remands Order on MRP Alteration Penalties for Fresh Review

NITIN PATKI Versus COMMISSIONER OF CENTRAL EXCISE, THANE-II

The Tribunal set aside the impugned order regarding confiscation and penalties for altering MRP on imported and indigenous goods, remanding the matter for ... Affixing of bar code and MRP or imported goods - deemed manufacture - held that:- the provisions of Section 2(f)(iii) of the Central Excise Act are attracted. Extended period of limitation - held that:- The non-registration and non-declaration of their activities and non-compliance with the procedures with respect to removal of goods from the place of manufacture certainly would amount to suppression of facts and therefore, the adjudicating authority has correctly invoked the extended period of time for demand of central excise duty. Eligibility of Cenvat Credit - held that:- this point has not been urged by the appellant before the adjudicating authority nor has been any evidence been led by the appellant indicating that they have borne the incidence of duty on which Cenvat credit is claimed. - Matter remanded back to adjudicating authority to give a reasonable opportunity to the appellants to prove their claim regarding eligibility their CENVAT credit relating to duty/tax paid on input/input services and thereafter requantify the duty liability. Issues Involved:1. Confiscation and penalties for altering MRP on imported and indigenous goods.2. Applicability of Section 2(f)(iii) of the Central Excise Act, 1944.3. Invocation of extended period for demand of duty.4. Eligibility for CENVAT credit on inputs/input services.Issue-wise Detailed Analysis:1. Confiscation and Penalties for Altering MRP on Imported and Indigenous Goods:The Commissioner of Customs, Central Excise, Thane-II, in the impugned order, determined that goods valued at Rs. 2,17,76,550/- and having an assessable value of Rs. 1,29,88,935/- were liable to confiscation under Rule 25 of the Central Excise Rules, 2002. A fine of Rs. 30,00,000/- in lieu of confiscation and penalties on the appellant and its officials were imposed. For the second show-cause notice, the Commissioner confirmed a duty demand of Rs. 1,68,53,950/- under Section 11A(2) of the Central Excise Act, 1944, along with interest under Section 11AB and equivalent penalties under Section 11AC. The goods were also liable to confiscation under Rule 25, with a fine of Rs. 3,00,00,000/- imposed in lieu of confiscation. Additional penalties were levied on the appellant and its officials under Rules 25 and 26 of the Central Excise Rules, 2002.2. Applicability of Section 2(f)(iii) of the Central Excise Act, 1944:The Tribunal noted that the appellant was engaged in the purchase and sale of consumer goods, which were labelled with new MRP stickers higher than the declared price at the time of importation. As some goods were specified in the Third Schedule to the Central Excise Act, 1944, activities such as packing, repacking, labelling, or altering the retail sale price amounted to manufacture under Section 2(f)(iii) of the Act. The Tribunal confirmed that these activities amounted to manufacture, making the appellant liable to discharge excise duty on the products, regardless of the customs duty paid at importation.3. Invocation of Extended Period for Demand of Duty:The Tribunal upheld the invocation of the extended period for demand of duty, noting that the appellant had not informed the department about the alteration of MRP or compliance with the prescribed procedures under the Central Excise Act and Rules. The non-registration and non-declaration of their activities constituted suppression of facts, justifying the extended period's invocation. The Tribunal distinguished the appellant's reliance on various judicial pronouncements, affirming that the facts of the present case warranted the extended period's application.4. Eligibility for CENVAT Credit on Inputs/Input Services:The appellant claimed eligibility for CENVAT credit amounting to approximately Rs. 3.3 crores on inputs and input services. However, the Tribunal noted that this claim was not raised before the adjudicating authority, nor was evidence provided to support the claim. Consequently, the Tribunal remanded the matter to the adjudicating authority to determine the appellant's eligibility for CENVAT credit and to re-quantify the duty demand and penalties accordingly. The adjudicating authority was directed to provide a reasonable opportunity for the appellant to prove their claim with necessary documentary evidence.Conclusion:The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for fresh consideration of the appellant's eligibility for CENVAT credit and re-quantification of the duty demand and penalties. The stay petitions were allowed, and the appeals were disposed of by way of remand.