TaxTMI 
TaxTMI 
2016 (1) TMI 553
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....lant also subsequently filed another five Bills of Entry [Bs/E dt. 18.8.2011, 19.11.2011, 22.11.2011, 29.11.2011, and dt. 29.112011] for clearance of various models of mobile phones and the goods were seized. The officers conducted search of the appellants premises at Hyderabad and recovered documents and also seized 2092 nos. of cell phones of Kechao brand contained in 44 boxes said to have been cleared from Chennai Custom House under B/E No.5176594 dt. 14.11.2011. On examination of the goods, it was found that certain goods were misdeclared and in two Bills of Entry there were excess quantity and also undeclared quantity and also shortage of quantity. On further examination, it was found that certain cell phones were not declared by the appellant in the invoices. Statement was recorded from Mr. Raj Kumar Harwani, Managing Director of appellant company, and after completing detailed investigation, show cause notice dt. 4.4.2012 was issued to the appellant proposing to reject the Retail Sale Price (R.S.P) in all the live consignments and 6-past consignments and also proposing to redetermine the value at higher R.S.P based on contemporaneous R.S.P of identical other similar models. ....
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....5235745/19.11.2011 & 5331392/29.11.2011. (iii) She confiscated the goods valued at Rs. 13,24,73,608/- in respect of past clearances covered under the respective six Bills of Entry. (iv) She demanded differential duties on mobiles phones of different models that were recovered as undeclared goods and found excess in quantity of the declared goods in respective Bills of Entry and confiscated the said goods. However he allowed redemption on payment of fine of Rs. 3 lakhs and Rs. 2 lakhs in respect of those goods. (v) She also confirmed the differential duty of Rs. 39,49,795/- on the imports covered under Eight Bills of Entry and Rs. 31,19,432/-on the past clearances covered under Six Bills of Entry. (vi) She ordered for appropriation of Rs. 32,20,377/- deposited volunatarily by appellant as differential duty towards the Customs duty liabilities. (vii) vide Corrigendum dt. 21.1.2014, she imposed Redemption fine of Rs. 30,00,000/- and Rs. 30,000/- under Section 125 (1) of the Customs Act. (viii) She also ordered for enforcement of Bank Guarantee of Rs. 22 lakhs (vide corrigendum dt. 21.1.14) towards duty and adjudication ....
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.... market enquiry and estimate of sale price of cell phones sold and the same was relied by the department (page 16 to 169) which is not the sale price but it is only an estimate. He drew our attention to para 30.04, 30.05 and para-33 of OIO and submits that the adjudicating authority has invoked Rule 4 (b) and 5 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 [RSP Rules]. They are registered with both Sales Tax and Income Tax authorities and discharging VAT on their sales turnover and filing IT returns. They submitted 51 retail sales invoices of their own products to the department indicating the RSP but the same was not considered by the adjudicating authority. He submits that in compliance of Section 3 (2) of Customs Tariff Act they have duly declared the R.S.P and it was never sold at higher price at retail sale than the R.S.P. declared by them. These are sold at lesser R.S.P. whereas the adjudicating authority has determined the R.S.P of Rs. 3000/- and above to all the products based on enhanced RSP the CVD was demanded. The counsel also submits that basic customs duty is NIL. The adjudicating authority has rejected the contemporaneous e....
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....n imposition of penalty, he relied the following case law :- (i) VED Prakash Wadhwani Vs CC Ahmedabad 2009 (2330 ETL 356 (Tri.-Ahmd.) (ii) Madras Petrochem Ltd. Vs CC Chennai 2007 (280) ELT 712 (Tri.-Che.) He submits that their live consignments are still held up in Customs and prays that the impugned order may be set aside and also he submits that they are ready to provide all necessary documents in support of R.S.P. before the adjudicating authority. 6. On the other hand, Ld.A.R for Revenue reiterated the OIO and relied para-8 of the OIO where the statement of Shri Rajkumar Harwani, Managing Director of appellant company has been recorded where he has admitted in his statement that he is agreeing to revise the R.S.P to Rs. 3000/- and also paid the differential duty. She drew our attention to para 32.1 wherein the adjudicating authority countered the worksheet submitted by the appellant. The department has enhanced the R.S.P. based on the contemporaneous Bills of Entry as per NIDB data which is enclosed as Annexure 3 (Pages 125 to 146). She drew our attention to para-20 to submit that their own identical goods were cleared to Hyderabad at R.S.P ....
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....ription of the goods except in respect two Bills of Entry where the goods were undeclared, excess quantity were noticed. We find that the Basic Customs Duty (BCD) is exempted on cellular phones only the CVD is chargeable as per Central Excise Notification No.20/2011 . Since the goods are packaged commodity, in terms of Section 3 (2) of Customs Tariff Act read with Section 4A of Central Excise Act, on importation of the said goods these are liable to be affixed with M.R.P and assessed accordingly for determining the CVD, after allowing abatement as per the notification issued under Section 4A of Central Excise Act. We find that the goods were imported in the year 2011 under 14 Bills of Entry out of which 8 are live consignments and 6 are past consignments. The adjudicating authority had rejected the R.S.P declared and affixed on the goods by the appellant on the sole ground that contemporaneous imports of similar goods where higher RSP was declared by the importer. On perusal of SCN, it is seen that the adjudicating authority listed out a comparative chart of declared R.S.P and contemporaneous R.S.P. of various brands and models of mobile phones. It is pertinent to see that there is....
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....e prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes of this section, "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all chares towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale; As seen from the above statutory provisions, we find that the authority can only redetermine or dispute the retail sale price only if the manufacturer has not declared R.S.P on the packages or not declared the actual R.S.P or tampers with, obliterates or alters the R.S.P. declared on the package of such goods. It stipulates the criteria how to determine the R.S.P. if the declared R.S.P is not acceptable by the Excise authorities. Rule 4 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008 [RSP Rules 2008] clearly explains the methodology sequential manner and if the identical goods are manufactured and are re....
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....ble Supreme court's judgement in the case of I.T.C Ltd. Vs CCE New Delhi (supra) wherein the Hon'ble Apex Court laid down the principles on M.R.P. The relevant paragraphs of the order are reproduced as under :- "47. Examples of the third kind of declaration are usually to be found where assessment under Statute A is dependent upon a basis provided by Statute B. In such case, the assessing officers under Statute A cannot question the basis. That is within the province of the authorities under Statute B. 48. In the decision of Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. - 1969 (1) SCC 91, the furnishing of a declaration under Section 12(1) of the Foreign Exchange Regulation Act, 1947 was a pre-condition to the export of goods under the Customs Act, 1962. This Court said that the correctness of the declaration could not be questioned by the Custom Authorities on the ground that the declaration under Section 12(1) of FERA was incorrect. Similarly, in M. Narasimhaiah v. Deputy Commissioner for Transport - 1987 (Supp.) SCC 452, the Karnataka Motor Vehicles Taxation Act provided for taxation with reference to a number of passengers which the vehicle....
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.... no power to rescrutinise or question that M.R.P which is covered under the S.W.M.Act. The Department can only satisfy itself that there is a declaration of RSP in the prescribed format. Further, we also find that the adjudicating authority has relied market enquiry estimate quotations as evidence of contemporaneous RSP imports which is not in conformity with R.S.P. Rules. 11. Further, we find, the lower authority while re-determining the R.S.P on the imported goods relied NIDB data of past imports. Whereas the appellant had produced their own R.S.P invoices (51 nos.) of lesser RSP before the adjudicating authority which is not considered on the grounds as per Rule (4) RSP of goods cleared in the past which is beyond 1 month is not comparable. If L.As view is accepted the same principle applies to NIDB data relied by the L.A. The L.A has also not brought out any evidences whether the appellant violated any of the provisions of SWM Act (LMA) as declaration of MRP/RSP on the packaged goods is within the ambit of SWM Act which is adopted for Central Excise purpose under Section 4A. By respectfully following the Honble Supreme Court above decision we hold that in the absence of any ....