TaxTMI 
TaxTMI 
2023 (7) TMI 324
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....a storage platform intended for mainframe computing and storage of data, common in large business storage systems for data storage and processing, like banks, insurance companies, large media houses, IT institutions, etc., did not appear to be meant for retail sale, and consequently, the matter was taken up for investigation by the Directorate of Revenue Intelligence (DRI), Mumbai. 1.3 It appeared to the DRI during investigation that there was a contract titled as "Channel Partner Distribution Contract (India)" between M/s. EMC Information Systems International (hereinafter referred to as 'EMC'), which is the manufacturer and supplier, and the appellant, in the capacity of a channel partner, for remarketing products and services of M/s. EMC, belonging to product families such as Symmetrix, Application Software, Backup and Recovery Solutions, VNX, VNXe, etc., in India, Bhutan, Bangladesh, Sri Lanka and Nepal. The respondent, as a channel partner, was authorized to appoint re-sellers after obtaining prior permission of M/s. EMC, but however, such re-sellers were not authorized to remarket the products, for which even the respondent-assessee did not have authorization. 1.4 It ap....
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....ct, 1962. (iii) The imported impugned goods with a total assessable value of Rs.513,39,63,465/- in respect of the Bills-of-Entry under dispute should not be held liable for confiscation under Section 111(m) ibid. (iv) Liability to penalties under Section 112(a) or 114A; and 114AA ibid. 3. It appears from the documents placed on record that the respondent filed a very detailed reply vide reply dated 21.12.2018 wherein they appear to have contended as under: - • As a channel partner, the respondent would sell the imported goods in the market, on retail sale basis as such, in the same pre-packaged condition, against the payment of applicable VAT / CST. • The respondent is also registered under the LMA, 2009. • Levy of 4% SAD under Section 3(5) of the Customs Tariff Act, 1975 was imposed to counterbalance various internal / State taxes like Sales Tax and Value Added Tax vide Notification No. 19/2005-Cus. dated 01.03.2005, as amended subsequently. • The respondent had paid applicable VAT on the sale, which took place after importing the goods. • At the time of import, the respondent had also submitted ....
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....Ambe, Ld. Deputy Commissioner for the appellant-Revenue and Dr. C. Manickam, Ld. Advocate for the respondent. 7.1 The contentions of the Ld. Deputy Commissioner could be summarized, as below: - (i) The imported packaged goods were not intended for retail sale as the imported goods were customized goods as per the requirements of the buyers. (ii) The goods were procured on the basis of the tendering process, wherein the lowest bidder was given the order. Thus, the lowest quote by the buyer had become the basis for the sale of the goods with the MRP becoming irrelevant. (iii) The imported goods were pre-booked on the basis of the Purchase Order placed by the buyers and the goods were already destined for sale to a pre-decided customer. (iv) Even though VAT is claimed to have been paid, mere payment of VAT will not decide the retail sale nor their eligibility for the exemption at the time of import. (v) With regard to respondent's submission as to revenue neutrality, it is imperative to understand that mere payment of VAT on any subsequent sale of the imported goods does not signify that revenue has been taken care of. (vi) In t....
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.... Chennai Air Cargo Complex, necessary permissions were taken for affixing the MRP stickers on the imported pre-packaged goods. As a token of proof, letters dated 23.03.2015, 18.03.2015 and 16.02.2016, all submitted by Customs Brokers on behalf of the respondent, were also submitted. (e) On post importation basis, at the time of retail sale, necessary Value Added Tax was paid on the imported goods, which were in pre-packaged condition. (f) The aspect of revenue neutrality was also explained with reference to various decisions including the decision in the case of M/s. Punjab Tractors Ltd. v. Commissioner of Central Excise, Chandigarh [2005 (181) E.L.T. 380 (S.C.)] and M/s. Tenneco RC India Pvt. Ltd. v. Commissioner of Central Excise, Chennai [2009 (235) E.L.T. 105 (Tribunal - Chennai)]. (g) The aspect of limitation was also explained and it was pleaded that the demand was time-barred. 9. We have heard the rival contentions, perused the impugned order and also the documents placed on record. 10. After hearing both sides, we find that the only issue to be decided by us is: whether the assessee's claim for refund of 4% SAD, as allowed in the impugne....
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....the package in the manner given below: 'Maximum or Max. retail price Rs........inclusive of all taxes or in the form MRP Rs..........incl., of all taxes........" The requirement of the above is to clearly declare / indicate the retail sale price. 13. The case of the Revenue is on loose foundation. If we go by their grounds of appeal, they say that the imported goods were customized as per the buyer's requirements and the same were pre-booked. They also allege that such pre-booked, tailormade goods were sold, on the basis of tender, to the lowest bidder. So, if the contention as to pre-booked and tailormade goods was to be accepted, then there is no need for tender and the lowest bidder buying the goods. That is to say, the Department is trying to blow hot and cold; the first contention is clearly contrary to the second contention. 14. Be that as it may, now, we shall analyse if the importer in the case on hand has satisfied the above three conditions of the Notification. 15. From the contentions of the Ld. Advocate as also the importer's reply to the Show Cause Notice, the following facts emerge: - a) Each of the packages imported contained o....
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....T registration number / Sales Tax registration number / Central Sales Tax registration number was also furnished. l) There is also no dispute as to the availability of MRP labels on the pre-packaged goods. m) Rule 3 of the Legal Metrology (Packaged Commodities) Rules, 2011 prescribes exclusion clauses, to exclude: (i) packages of more than 25 kg. or 25 litres, excluding cement and fertilizer sold in bags up to 50 kg.; and (ii) packaged commodities meant for industrial consumers or institutional consumers. n) There is also no doubt that the pre-packaged goods in question are also not covered by the above exclusion clauses since the imported pre-packaged goods were sold in units and the same were bought from the importer only by their channel partners / resellers and not directly sold to industrial or institutional consumers. o) There is also apparently no declaration that such packages were "not for retail sale". 16. There are clearly buyers, identified or otherwise, for the pre-packaged goods; there is no dispute that such pre-packaged goods were sold by the importer to the buyers/resellers and that MRP/RSP labelling was witn....