TaxTMI 
TaxTMI 
2014 (12) TMI 233
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....ment of Central Excise duty on MRP basis under the provisions of Section 4A of the Central Excise Act, 1944. In the purchase order of ELCOT, it was indicated that unit price is inclusive of all accessories, taxes, duties and warranty charges, etc. However, the warranty charges of Rs. 75/- per TV will be paid to the supplier only after the end of 1st year and another Rs. 75/- at the end of 2nd year. This unit price including the warranty charges is declared as MRP on all the packages of TVs. However, while discharging the Excise duty liability, the applicant had worked out the assessable value as MRP minus warranty charges of Rs. 150/-. In view of the above a show cause notice dated 25-2-2010 was issued to the appellant demanding differential excise duty of Rs. 3,87,14,771/- under the provisions of proviso to Section 11A(1) of Central Excise Act, 1944 along with interest thereon under Section 11AB ibid. The notice also proposed to impose penalty on the appellant under the provisions of Section 11AC of the Central Excise Act read with Rule 25 of the Central Excise Rules, 1944. The said order was adjudicated by the Commissioner of Central Excise, Aurangabad vide the impugned order and....
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....by limitation as there is no suppression of facts with an intention to evade payment of duty. The ld. Advocate relies on the following judgments in support of above contention, namely (i) CCE v. Acer India Ltd. - 2004 (172) E.L.T. 289 (S.C.), (ii) CCE v. Real Times Systems Ltd. - 2009 (237) E.L.T. 289 (Tri.-Del.), (iii) Ericsson India Pvt. Ltd. v. CCE - 2007 (245) E.L.T. 712 (Tri.-Chennai) and (iv) HCL Info-systems Ltd. v. CCE - 2009 (245) E.L.T. 712 (Tri.-Chennai). In the light of the submission, the ld. Advocate prays for complete waiver of pre-deposit of the dues adjudged for hearing the appeal. 4. The ld. Additional Commissioner (AR) appearing for the Revenue strongly opposes the stay application filed by the appellant. He submits that as per the provisions of sub-section (2) of Section 4A of the Central Excise Act, the value for the purpose of excise levy is "the retail sale price declared on the goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the official gazette". In the case under consideration, the appellant has included the warranty charges in the retail sale price of the goods. Therefor....
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....ion 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. (4) Where any goods specified under sub-section (1) are excisable goods and the manufacturer - (a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price s....
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....price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all deduction local or otherwise freight, transport charges, commission payable to dealers and all charges towards advertisements, delivery packing, forwarding, etc. and the price is sole consideration for such sale" and there is no mention of warranty charges in the definition of retail sale price and hence the warranty charges does not form part of the retail sale price. This argument is totally incorrect. Merely because the inclusive part of the definition describes certain elements to be included in the retail price, it does not mean that whatever is not specifically stated therein cannot be included in the retail sale price. As per the main definition, retail sale price means maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer. If that price includes warranty charges, obviously the same cannot be excluded from the retail sale price. In the instant case it is an undisputed fact that retail sale price, which was declared by the appellant/assessee included the warranty charges. Thus, as per the appellant's declaration, the retail sale ....
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....by way of training, installation and maintenance. There was nothing on record to show that in the price of the goods cleared, the value of the services were included. It was therefore, held that services not being manufacture were not goods and not liable to duty. In the case before us, the facts are distinct and different. In the present case as per the definition of retail sale price, it is the price at which the goods are sold to the ultimate customer and the appellant has declared the retail sale price inclusive of warranty charges. Under Section 4A what is permitted to be abated is only the abatement notified by the Government. Further, Real Time Systems Ltd. case did not deal with a situation where valuation under Section 4A was involved. Therefore, the ratio of the judgment has no relevance to the facts of the present case and cannot be relied upon at all. So is the case in respect of Ericsson India Pvt. Ltd. case, where the appellants were undertaking installation and commissioning apart from the supply of transmission apparatus. The installation/commissioning was a separate activity on which service tax was paid and the supply of goods was in respect of imported goods and ....