2014 (12) TMI 172

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....s differentiating them on the grounds that circumstantial flexibility or one additional different fact can make a world of difference between two cases as observed by Apex Court in the case of Commissioner vs. Srikumar Agencies [2008 (232) ELT 577 (S.C.)]. Commissioner (Appeals) also relied upon CESTAT's order in the case of Sree Baidyanath Ayurved Bhavan Limited vs. CCE Nagpur [2009 (238) ELT 680 (Tri. Mum.)] where, inter-alia, it was held that once goods are sold at MRP then it is implied that duty of incidence has been passed on to the ultimate consumer. 2. The facts leading to the present appeal as per OIA dated 05.8.2011 are that appellant did not declare the MRP affixed on the said imported goods and at the time of import, the goods were assessed to Additional Duty of Customs (CVD) on the basis of the invoice value. Ceramic tiles being notified commodity under Section 4A of the Central Excise Act, 1994, were admittedly liable to CVD on the basis of MRP in terms of Notification No. 13/2002-CE dated 01.3.2002. In March 2006, investigations were initiated by DRI against the appellant and a show cause notice was issued on 24.5.2007 for determination of differential duty. Durin....

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....arnataka High Court [2008 (221) ELT 489) Kar)]         (e) ITW India Limited vs. CCE - [2009 (248) ELT 664 (Tri.)] (ii) That the amounts were paid by the appellant after the clearance of ceramic tiles from Customs but before the goods were sold in the years 2005-2006 itself. That it can not be presumed that appellant would have recovered the amounts from the consumers when duty is not separately shown in the sale invoices. (iii) That the amounts paid during investigation has been shown as receivable in the balance sheet, therefore, principles of unjust-enrichment are not applicable to the facts and circumstances of the present appeal. 4. Shri J. Nagori (AR) appearing on behalf of the Revenue strongly defended the order passed by the first appellate authority. He made the bench go through various paragraphs of the OIA dated 05.8.2011 to drive home the point that the pattern of sale by the appellant before the present imports and after these imports has remained the same when ceramic tiles were sold on MRP by the appellant. That by non-declaration of MRP at the time of import it cannot be said that imported tiles were not sold at MRP and....

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.... the CESTAT order dated 26.9.2009 in the case of the appellant as reproduced by the first appellate authority is as follows:-                 4. There is no dispute to the fact that the vitrified and glazed tiles were liable to be assessed to duty of CVD on the basis of MRP. Learned advocate, Shri Sridharan, appearing for the appellant has admitted the above position but submits that the entire confusion has arisen on account of a Notification No. 72/05-Cus dated 22.7.05 giving effect to Bangkok agreement laying down payment of duty on the basis of invoice value. Elaborating on his arguments he submits that the said tiles are being imported by them at various parts. The import was made in June 2005 at Mundra Port and MRP was declared and CVD was paid on the basis of the same. He also submits that they had been clearing their goods at Kandla through their clearing agent M/s. Krishna Agency, who had been declaring the MRP in respect of imports made prior to July 2005. Similarly, the imports made at Nava Sheva, before the said period has discharged duty burden on the basis of MRP. In fact by drawing our atte....

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....n addition, the invoice is stamped by 'Duty Paid Under Protest'. Similarly, the illustrative commercial invoice contains a remark as aforesaid regarding non-recovery of excise duty. Further, the price circular effective from 15-11-99 carries a remark as under: (A) The above prices are inclusive of all taxes, but does not include Central Excise Duty. The above facts are not disputed. But the crux of the matter is that the appellants have failed to prove that the incidence of duty is not included in the MRP. The appellants did not produce, either before us or before the lower authorities below, the empty packing of the containers for the relevant period in which goods have been sold and which bear the MRP price to find out whether the price printed on the container is MRP on which they have paid the duty as per Section 4A ibid or it was MRP minus excise duty. They are unable to prove that the MRP is not inclusive excise duty. The reliance placed by the appellants on the Madras High Court judgment in the case of Addison and Co. cited supra is misplaced as in that case the Hon'ble Madras High Court proceeded on the premise that there was no evidence whatsoever before the authorit....