2023 (8) TMI 266

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....n value, and also held that the importer can thereafter claim refund as provided by law. 1. Brief facts are that, the respondent, M/s. Acer India Ltd. filed bill of entry dated 06.02.2012 for import of notebook computers consequent to an order placed by Rajiv Ghandhi University of Knowledge Technologies, Hyderabad (RGUKT). The respondent had assessed the bill of entry on the basis of Retail Sale Price (RSP) for payment of duties. Later they realized that as the goods are for supply to educational institution and not intended for retail sale, the assessment ought to have been done under normal transaction value, instead of RSP based assessment. This resulted in excess payment of duty of Rs.12,41,118/-. The respondent then requested for re-a....

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....and the relevant Packaged Commodities Rules were adverted to by the Ld. AR. The decision of the Hon'ble Apex Court in the case of Jayanthi Food Processing (P) 2007 (215) ELT 327 was referred to canvass the argument that in the said case, the Hon'ble Apex Court had laid down the factors for assessment under Section 4 A of the Central Excise Act 1944. These are:- (i) The goods should be excisable (ii) They should be such as are sold in the package (iii) There should be requirement in the Standards of Weights Act or the Rules made thereunder or any other law to declare price of such good relating to their retail price on the package. (iv) The Central Government must have specified such goods by notification in the official Gazette (v....

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....In the case of Jayanthi Food Processing Ltd. (Supra), it was held that as long as the goods are notified under Section 4A and imported in pre-packaged condition, bearing MRP and the sale is directly to ultimate consumer, the assessment is to be under Section 4 A. In the present case, as the sale is not made to ultimate consumer, the third factor as put forth by the Apex Court, is not satisfied. Further, while laying down the law in Jayanthi Food Processing Ltd. the Apex Court was dealing with the pre amended Act and Rules. With effect from 13.01.2007, Rule 2 A has been amended which specifically provides that the provisions relating to the packages intended for retail sale will not be applicable when the packaged commodity is meant for 'ins....

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....supply to institutional consumer. The said decision of Tribunal was affirmed by the Hon'ble Apex Court as reported in 2020 (3) TMI 776 - S.C. Similar view was taken in the case of Charms Cosmetier Pvt.Ltd. Vs CCE 2017 (352) ELT 197 (Tribunal - Mumbai). 4. Head both sides. 5. The issue to be decided is whether the imported goods are to be assessed under Section 4 or Section 4 A of C.E. Act 1944 for payment of Counter Vailing Duty (CVD). 5.1 The department is of the view that the goods imported being in prepackaged form with MRP affixed, the value has to be assessed under Section 4 A on the basis of MRP. The Ld. Counsel for respondent has argued that though in prepackaged form, bearing MRP since the goods were imported without intention fo....