TaxTMI 
TaxTMI 
2024 (2) TMI 727
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.... protest. 2.1 Brief facts are that the Appellant, manufacturing electrical goods are engaged in the manufacture and clearance of Moulded Case Circuit Breakers (MCCB) commonly known as switchgear products falling under Chapter Head 8536 of the Central Excise Tariff Act, 1985. The goods falling under Chapter 8536 of the Central Excise Tariff Act, 1985 are required to be assessed to duty based on retail Sale Price (RSP) in terms of Sl.No. 90 of Notification No. 2/2006-CE (NT) dated 01.03.2006 (as amended) after allowing the specified percentage of abatement. The RSP based assessment is governed by Section 4A of the Central Excise Act, 1944. The Appellants were affixing a sticker on their own on the packages that these are "Specially packed for the exclusive use of an industry as a raw material or for the purpose of servicing any industry, Mine or quarry and not intended to be displayed for sale at a Retail Outlet" and appears to be under the impression that the above practice of affixing a sticker would absolve them of the requirement to declare MRP on the packages. During the period from 01.04.2007 to 31.05.2008, the Appellants have assessed the MCCB clearances under Section 4 of ....
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....tail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein and includes the imported packages : Provided that for the purposes of this clause, the expression 'ultimate consumer' shall not include industrial or institutional consumers; CHAPTER -II PROVISIONS APPLICABLE TO PACKAGES INTENDED FOR RETAIL SALE 2. Applicability of the Chapter The provisions of this Chapter shall not apply to,- (a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and (b) packaged commodities meant for industrial consumers or institutional consumers. Explanation :- For the purpose of this rule,- i) "institutional consumer" means those customers who buy packaged commodities directly from the manufacturers/ packers for service industry like transportation( including airways, railways), hotel or any other service industry. ii) "industrial Consumer" means those consumers who buy packaged commodities directly from the manufacturers /packers for using the product in their industry for production, etc." Appel....
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....ts is also sale to Industrial Consumers so far as the ultimate buyers are industrial consumers. It was contended that the judgement in the case of Ewac Alloys Ltd. which held that, in the case of retail package meant for industrial customers, the manufacturer may not be able to supply the goods directly, was not followed in the impugned order. 3.4 It was submitted that there was no machinery provision to determine the MRP prior to 01.03.2008 and the demand prior to that period will not sustain. The period involved in the case is between 01.04.2007 to 27.05.2008 and since the machinery provision for the department to ascertain MRP came into being vide Central Excise (Determination of RSP of Excisable Goods) Rules, 2008, vide Notification No. 13/2008-CE(NT) dated 01.03.2008, there was no mechanism under the Act prior to the introduction of the RSP rules. Out of the total duty demand of Rs.1,48,31,636/-,an amount of Rs. 1,04,90,320/- pertained to period prior to 01.03.2008. In this regard, reliance was placed on judgements in Eternit Everest Ltd. Vs. Union of India [1997 (89) ELT (28)], Millenium Appliances India Limited Vs. Commissioner of Central Excise, Hyderabad [2009 (248) ELT....
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.... evidence on the above allegation. In this regard reliance was placed on the judgements of the Hon'ble Supreme Court in Union of India Vs. Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (SC)], in the case of Commissioner of Central Excise, Chandigarh Vs. Pepsi foods Ltd. [2010 (26) ELT 481 (SC)] and in the case of Kellner Pharmaceuticals Vs. Commissioner of Central Excise [1985 (20) ELT 80]. Further it was averred that the issue involves interpretation of provisions of law and so no penalty could be imposed. In this regard, he has placed reliance on the following judgements:- i. Commissioner of Central Excise Vs. Swarup Chemicals (P) Ltd. [2006 (204) ELT 492 (Tri.)] ii. Haldia Petrochemicals Ltd. Vs. Commissioner of Central Excise [2006 (197) ELT 97 (Tri.)] iii. Commissioner of Central Excise Vs. TELCO Ltd. [2006 (196) ELT 308 (Tri.)] iv. Siyaram Sik Mills Ltd. Vs. Commissioner of Central Excise [2006 (195) ELT 284 (Tri.)] v. Commissioner of Central Excise Vs. Sikar ex-Serviceman Welfare Coop. Society Ltd. [2006 (4) STR 213 (Tri.)] vi. Hindustan Steel Ltd. Vs. State of Orissa [1978 (2) ELT (J159) (SC)] vii. Fibr....
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....on [2013 (297) ELT 40 (Gujarat)] 4.4 Furthermore, it was submitted that in the Appellant's own case in Commissioner of Central Excise, Nashik Vs. Scneider Electricals India Private Limited, Final Order No. A 86413/2018 dated 08.03.2018, the Hon'ble CESTAT, Mumbai set aside the imposition of penalty. As further appeal was not filed by the Department, the said order attained finality. 5. The Ld. Authorised Representative Shri Rudra Pratap Singh representing the Department reiterated the findings of the lower Adjudicating Authority and submitted that the ratio of the judgement in the case of Larsen and Toubro is applicable to the facts of the case and the clearances for industrial customers by the Appellant were to be affixed with MRP and assessed under Section 4 A of the Central Excise Act, 1944 as held in the impugned order. 6. Heard both sides and carefully considered the submissions and evidences on record. 7. We find the following issues emerge from the facts of the present case:- i. Whether the Appellants are required to affix MRP on their Product MCCB as per the Standards of weights and Measures (packaged Commodities) Rules, 1977 or not for clearances effec....
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....ch is basis for all transactions between the manufacturer and distributor/stockist/retailer can be adopted as MRP of the product under the reasonable/best judgment method before 1-3-2008 and on and after 1-3-2008 under Section 4A read with Rule 6 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008." 8.3 It is relevant to mention here that the issue pertaining to the above said final order pertains to two show cause notices issued to the M/s. Schneider Electrical India Pvt. Ltd., Nasik (i) for the period from June 2003 to December 2007 issued on 7th July 2008 and (ii) January 2008 to April 2008 issued on 02.02.2009. It is observed that both the Show Cause Notices have been issued by invoking the extended period. 9. Regarding issue at 7(iv) above, we find that in the appellant's own case for another unit, on the very same issue, the lower Appellate Authority has held that extended period of limitation cannot be invoked. On further appeal, CESTAT, Mumbai had vide Final Order No. A/85749/2019 dated 16.04.2019 upheld the order of the lower authority on limitation and penalty imposed was set aside. The relevant extract of the judgement has been....
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....and for the extended period. Accordingly, we dismiss the appeal of revenue" The Ld. counsel for the appellant has submitted that as there was no further appeal by the Department and the issue attained finality. 10. Regarding the invocation of extended period in the present case, we find that the impugned SCN has been issued on 11.05.2012 for the period from 01.04.2007 to 27.05.2008. The entire issue has arisen because of change of opinion due to differing legal interpretations. The Appellant has contended that he was under the bonafide belief that there was no requirement to affix MRP on the switchgear products sold by them industrial/institutional consumers through their dealers and these were exempted under the Packaged Commodity Rules, 1977. Moreover, it is an admitted fact that they were affixing a sticker on their own on the packages of their products that they are "Specially packed for the exclusive use of an industry as a raw material or for the purpose of servicing any industry, Mine or quarry for industrial use only and not intended to be displayed for sale at a Retail Outlet. Hence, it is to be noted that there is no mis-declaration by the Appellant to intentionally....