TaxTMI 
TaxTMI 
2016 (10) TMI 333
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....n cast upon the importer to monitor the post import sale of goods, so as to ensure that the goods are not sold at prices higher than the declared MRP. (ii) The available evidence only points to tampering with the MRP declaration by the wholesale dealers, subsequent to the clearance of the goods from customs. (iii) The Department s case is that the MRP has been increased at the hands of the wholesale dealers and sold at a higher price thereby causing short payment of CVD. If that be so, the wholesale dealer will become a deemed manufacturer going by Section 2(f)(iii) of Central Excise Act and it is those dealers who affixed the revised MRP, who will become liable to pay Central Excise duty at the enhanced MRP. (iv) The change in MRP carried out by the wholesale dealers would tantamount to manufacture and such changing of MRP on the toilet soaps have taken place subsequent to the clearance of goods and sale by the importers. (v) The department has no case that there has been any flow back of funds from the wholesale dealers to the appellant due to the alleged change in the MRP. (vi) The lapse on the part of the foreign suppliers in not fixing MRP was brought to the notice of the....
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....bmissions made by both the sides and the case laws cited. 6. The appellant has been importing toilet soaps where they had declared the RSP per piece as Rs. 5/- to the Cochin Customs. The show-cause notice dated 11.7.2005 issued to the appellant in its para 1 inter alia states the position of law in case of charging of CVD as follows: "As per explanation I to Section 4A of the Central Excise Act, 1944 retail sale 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 charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale. The Countervailing Duty (CVD) have been assessed on basis of Maximum Retail Price/Retail Sale Price (MRP/RSP) declared before the Customs after abatement as permitted under Section 4A of the Central Excise Act, 1994 and under Notification No.5/2001-C.E. (NT) dated 01.03.2001 superseded by Notification No.13/2002-C.E. (N.T) dated 1.3.2002 as amended from time to time. In the case of toilet soaps the abatement is 35%. The declaration of Maximum Retail....
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....l be applicable on import of all pre-packing products, as these are applicable on similar domestically manufactured products. 04. As per the DGFT Notification No.44 (RE) dated 24.11.2000, an importer of consumer products has to ensure the strict compliance of the conditions laid down by the DGFT on all import of pre-packaged products. It is based on this MRP that the CVD component of import is calculated. 05. It has been clearly laid down in the proviso to Section 3(2) of the Customs Tariff Act, 1975 that, in case of an article imported into India in relation to which it is required, under the provisions of the Standards of Weights and Measure Act, 1976 or the Rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such article, the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by Notification in the official Gazette allow in respect of such like article under sub-section (2) of Section 4A of the Central Excise Act, 1944". 6.2 From the facts and....
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....ings of the Commissioner in the impugned order at Para 50 reproduced below makes it very clear that importer has been in active knowledge and they rather facilitated the sale of the goods to be made at the higher price (MRP) than the price (MRP/RSP) they had declared to the customs. Based on the facts on record and the submissions of both the sides, we are in agreement with the findings of the Commissioner given in Paras 50 and 54. In this regard the Commissioner s findings clearly indicate that the appellant cannot absolve themselves from the responsibility that the goods carried different MRP labels of the price then what they had declared to the customs. The Commissioner s observations in the impugned order given in its paragraphs 50 and 54 are given below: "50. Statements of the importer as well as the distributors were recorded by the investigating officers. The importer stated that the soaps imported by them carried MRP stickers of Rs. 5/- and they had sold the soaps at Rs. 4.25. The importer further admitted that he was aware that the soaps imported by him were being sold to the ultimate consumer in the year 2003 at Rs. 8/- and in some outlets atRs.10/-. He also stated tha....
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....y had declared to the customs. 6.4.1 We again agree with the findings of the Commissioner in para 57, where he observes as under: "57. I find from the records that the investigation had ascertained that the GIV and Harmony Brands of soaps imported by M/s. Mathewsons Exports & Imports were being sold at a higher MRP than that declared. The investigations had, through the chain of supply, established the fact that the soaps found in the retail outlets were in fact imported by the importer. There is no doubt in this regard. The soaps were found with MRP stickers of Rs. 10/- on them. The distributors have admitted that in the supply chain from the importer to the ultimate consumer that the MRP of the soaps was Rs. 10/- and stickers were supplied by M/s. Mathewsons Agencies. This has been corroborated by the recovery stickers during the investigation. Further, everyone has agreed to the fact that they have been selling the imported soaps at a price higher than the MRP of Rs. 5/- declared by the importer. Shri Beby Mathew, Managing Director of the importing firm has admitted to the fact that he was aware of the fact that the selling price of M/s. Mathewsons Agencies was Rs. 6.70, in s....
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....al Excise Act, the value of imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement as the Central Government may allow. The facts which are not in dispute are that the impugned goods are the goods in relation to which the retail sale price is to be declared on the packages under the law for the time being in force and these goods have been specified by the Central Government under Section 4A(1) of the Central Excise Act. It is also not disputed by the Appellants that the MRP declared by them at the time of importation was not the same at which the goods were sold by them subsequently. This fact has been admitted by Shri Dipak Agarwal, Financial Controller of the Appellants, in his statements. Accordingly, the appellants are liable to discharge their duty liability on the basis of actual MRP at which the impugned goods are sold and not on the basis of MRP declared by them in haste without actually determining the same after taking into consideration the various factors such as landed cost and profit, etc. The ratio of the decision in the case of MRF Ltd., supra, is not applicable as the facts are entirely different....