TaxTMI 
TaxTMI 
2019 (12) TMI 786
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....pter 85 of the First Schedule to the Central Excise Tariff Act, 1985 Tariff Act. 3. Earlier, the Respondent paid Central Excise duty on transaction value of Rs. 1,767/- under section 4 of the Central Excise Act 1944 the Excise Act. Subsequently the Notification dated 24 January, 2008 issued by the Central Government in exercise of the powers conferred by sub-sections (1) and (2) of section 4A of the Excise Act granted abatement of 24% to Boxes for television sets. This Notification came into effect from 25 January, 2008. On 28 January, 2008, M/s TATA SKY Ltd intimated HEL about the change of MRP of Boxes from Rs. 2,999/- to Rs. 1,499/-. The Respondent thereafter, on 06 February, 2008 intimated the Department that the duty on Boxes shall henceforth be paid after claiming the abatement as provided for under section 4A of the Excise Act. The Department was further informed that M/s TATA SKY Ltd. had revised the MRP of Boxes from Rs. 2,999/- to Rs. 1,499/- with effect from 28 February, 2008.The Respondent further clarified on 08 February, 2008 that Excise duty would be paid on the basis of printed MRP of Rs. 1,499/-, but the boxes would be supplied at Rs. 1,767/- to HEL. The Departmen....
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....se Act were required to be assessed on the basis of printed MRP. However, retail sale price could be ascertained if either of the conditions specified in section 4A (4) stood satisfied. According to the Commissioner, none of the three situations existed in the present case and so there was no requirement of computing the MRP. The observations of the Commissioner are reproduced below:- "It is noticed that the situations as narrated at (a), (b) & (c) are not in picture. If the department contests that printed MRP is not the retail sale price then burden is on department to establish the same. The department has not put forth any evidence that the actual MRP to ultimate consumer is more than Rs. 1,499/- except that the product in question was sold at higher price than the MRP to M/s Humax Electronics or M/s TATA Sky Ltd., (who is the not the ultimate consumer). On the contrary from the copy of Invoice No.4118 dated 01.03.08 of M/s B.R. Electronic, City Plaza, Shop No.18, Raj Nagar, Ghaziabad it may be observed that one Tata Sky Digicomp has been sold to Shri Atual Agarwal, Ghaziabad at price of Rs. 1,499/-. An important note has been embodied at the bottom of the invoice that "warra....
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....tion 4 and once the Boxes are notified under section 4A of the Excise Act and also assessed under section 4A of the Excise Act by the Department, the transaction value has no meaning; (ii) The assessable value under section 4A of the Excise Act is the MRP affixed on the notified goods minus the abatement, it any, provided by Notification issued by the Government under section 4A of the Excise Act and it is such assessable value which is liable to Excise duty; (iii) There is no bar in selling the goods at a higher price than the MRP to an intermediary who further sells it to a buyer after which the goods reach the ultimate consumer and the value of the printed MRP on the boxes is only recovered from the ultimate consumer; (iv) The goods falling under section 4A of the Excise Act cannot simultaneously be assessed under section 4 of the Excise Act.; and (v) The Respondent manufactures goods in terms of the Excise Act. HEL and TATA SKY Ltd. were not ultimate consumers of the goods. Therefore, the price charged from them has no relevance under section 4A. If TATA SKY is considered as manufacturer then the price charged from ultimate customers was only Rs. 1,499/-. During, the pe....
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....h 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, packaging, forwarding and the like and the price is the sole consideration for such sale: Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) requires to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly." 11. In exercise of the powers conferred by sub-section (1) and (2) of section 4A of the Excise Act, the Central Government issued a Notification dated 1 March, 2006 which was subsequently amended by Notification dated 24 January, 2008 by which Set Top Boxes for television sets were included as at Serial. No. 89B. 12. The relevant portion of the amended Notification dated 24 January, 2008 as follows:- "In exercise of the powers conferred by sub-sections (1) and (2) of section 4A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to....