AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 923
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....athan, learned Counsel appearing on behalf of the appellant submits that the issue is no longer res integra as in an identical facts, this Tribunal in the case of Bharti Telemedia Ltd. Vs. Commissioner of Customs (Import), Nhava Sheva - 2016 (331) ELT 138 (Tri-Mum), it was held that Set Top Boxes imported as Customer Premises Equipment (CPE) and supplied to customer's premises does not involve the sale and the proprietary in the goods remained with the supplier. In that fact it was held that there is no sale involve, hence the CVD cannot be charged on the basis of RSP/MRP in terms of Section 4A of the Central Excise Act, 1944. In the present case also identical fact is involved that the appellant provided Digital Video Projector to the Theater Owners only on lease basis. Accordingly, ownership in the goods remained with the appellant, therefore, the transaction does not involve sale. 4. On the other hand, Shri S.R. Nair, learned Examiner (AR) refers to the definition of 'Sale' under the Standards of Weights and Measures Act, 1976. According to which the transfer of goods on the hire purchase system or any other system, the payment by installment also involve sale. Therefore, in th....
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....s, is - (i) the goods specified by notification in the Official Gazette under sub-section (1) of Section 4A of the Central Excise Act, 1944 (1 of 1944), 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 subsection (2) of Section 4A of that Act; The proviso above states that in certain cases the CVD shall be levied on the basis of retail sale price declared on the imported packages. It is clear that 2 conditions have to be met for CVD to be levied on the basis of RSP, namely: (1) Under Legal Metrology Act it should be required to declare on the package the retail sale price (RSP); (2) The imported goods must be specified in the notification issued under Section 4A(1) of the Central Excise Act, 1944. Only if these two conditions are satisfied, the CVD will be payable on the value equal to the retail sale price less the amount of abatement prescribed. In the case at hand it is undisputed that the second condition is met. Whether the first c....
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.... cannot be said that sale has taken place. It is seen from the definition that there should be a transfer of property for any consideration or there should be a transfer on the hire-purchase system or by any system of payment by any instalments. We find in the present case that there is no transfer of property or hire-purchase system involved nor there is a system of payment by instalments. Thus there appears to be no sale in the use of the Set Top Box by the ultimate consumer. The ld. AR referred to the definition of sale in the Central Sales Tax Act, 1956 which reads as : "(g) Sale, with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes ....... (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;" It is seen that the definition of sale in the CST Act has a much wider coverage and it includes the transfer of right to use any goods. But we see no reason to import the definition of sale from another statute when CVD is ....
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.... We find that the STBs are shown as capital assets in the books of accounts/Balance sheets and depreciation is claimed by them. The CPEs including STBs are capitalized on activation of the same. It has also been shown that VAT authorities of Maharashtra and Bihar have held that the supply of STBs does not constitute sale. We find the ld. AR's comments strange when he states that the expenses shown as capitalization of assets should have been treated as misc. expenses. There is no authority in law to compel the appellant to do so. It is, thus, clear to us that there is no transfer of property. 7.2 Only because the imported packages conformed to the Notification RE/44/2000 issued by DGFT in relation to Packaged Commodities does not necessarily mean that the MRP is required to be declared. Conforming to the notification may imply various other requirements such as weight of package. This is observed by us after seeing the various provisions of the Legal Metrology Act and the Packaged Commodities Rules. It has been stressed by the ld. Counsels that far from there being actual sale, the STBs are not even intended for sale. Under Rule 2(k), retail package is a package intended for retai....
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....ted on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction." In the supply of STBs too there is no sale, only service is being provided. 8. We find a direct judgment on the issue at hand in the case of Sun Direct TV Pvt. Ltd. (supra). However, we have chosen to analyze the issue threadbare as both sides have put forth various points on facts as well as law which are required to be addressed in a comprehensive manner. We do not agree with the reliance placed by the ld. AR in the cases of Dish TV India and Reliance Communication (supra). These cases related to the periods prior to 1-4-2012 when Dish TV showed transfer of STBs on rental basis as reflected in the invoices. VAT was also paid thereon. It was in that context that the Tribunal came to the conclusion that VAT was paid and there was a 'deemed sale' in the context of "right to use" as enshrined in Article 366(29A) of the Constitution. Therefore, the Tribunal held that since sale was involved, refund of SAD is admissible under the Customs Notification which provided for exemption from SAD ....
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....reme Court judgment in the case of Jayanti Food Processing (P) Ltd. v. Commissioner of Central Excise [2007 (215) E.L.T. 327 (S.C.)]. We have carefully gone through this judgment. While dealing with the case of free supply by Pepsi of KITKAT Chocolates (which are sold by KITKAT to Pepsi) along with a Pepsi bottle, the Hon'ble Court accepted the argument that contract of supply of Chocolates was for the purpose of advertisement of a particular product of the particular industry, and it would get covered within the expression "servicing any industry" to get exemption from applicability of the PC Rules. The relevant provision of Rule 34 reads as : "34. Exemptions in respect of certain packages. - Nothing contained in these rules shall apply to any package containing a commodity if, - (a) The marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry". It is demonstrated by the ld. Counsel of Bharti that the imported goods bear following declaration. "Not meant for retail sale, specially packed for the purpose of serving DTH industries. STB shal....
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....ail market in the same form and the same package and there is requirement of printing the MRP on each package of the Push Button Telephone." The vital part missed by the ld. AR in the present case is that it has not been established that there is any sale. Therefore he cannot rely on the above judgment in which there was bulk sale to MTNL/BSNL. Further Court also held that "When a "retail package" containing any commodity is produced, distributed, displayed, delivered or stored for sale for consumption by an individual or group of individual, it would be a "retail package". In this case, admittedly, DOT, MTNL and BSNL provided these instruments, after they have purchased the instruments, to the individual customers, though not by way of a "sale" but for their use." The present case is clearly distinguishable because the importers are not selling Set Top Boxes either to the dealer or to the customer whereas in the case of Jayanti Food Processing (P) Ltd. the telephones were sold to MTNL/BSNL. And the telephones had MRP printed on them which is not so in the present case of STBs. 10.3 We would like to mention that judgments may be relied on the basis of facts and circumstances obtai....