TaxTMI 
TaxTMI 
2024 (4) TMI 221
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Section 11Ab of the Central Excise Act, 1944. 3. I also impose a penalty of Rs 6,96,172/- (Rs Six Lakh Ninety Six Thousand One Hundred and Seventy Two only) upon M/s Videocon International Ltd, 1-d Udyog Vihar, Greater Noida under Section 11AC of Central Excise Act, 1944." 2.1 Appellant was engaged in manufacture of Color Television, Washing Machines, Refrigerator, Air Conditioners etc., classifiable under CETH 8528, 8450, 8418 and 8415 of the First Schedule to Central Excise Tariff Act, 1985. 2.2 During course of scrutiny of the ER-1 returns for the relevant period it was observed that the appellant cleared "refrigerator with Washing Machine" and "Refrigerator with VCD" as combination pack on "combination MRP" rather than combined MRP of the individual items, which resulted in short payment of Central Excise duty, contravening the provisions of Rule 4, 6 and 8 of Central Excise Rules, 2002 read with Section 4A of the Central Excise Act, 1944. 2.3 Two show cause notices as detailed in table below were issued to the appellant S No Show Cause Notice Date Period Amount 'Rs No Date 1 V(30)Dem/Videocon/N-IV/308/05/ 3434 05.05.2008 Apri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion to those goods that have been notified under this section, and which are goods covered under the provisions of the Standards of Weights and Measures Act, 1976. It follows that if any excisable goods has to be valued under the non obstante provision then two conditions have been specified, namely:- (i) it should have been notified by the Central Government under Section 4A of the Act, (ii) It should also be an item which is subject to the provisions of the Standards of Weights and Measures Act 1976. 4.6 There is no doubt that the impugned goods are subject to the provision of Standards of Weights & Measures Act. The statutes has clarified this provisions by providing a separate definition for "combination package" under Rule 2 ( c ) of the P.C.Rules. Rules 5 to 13 lays down the manner in which declarations must be made on every retail package. Rule 15 stipulates some additional declarations that should be made in respect of combination packages. There is therefore no doubt that the impugned goods are covered under Standards of Weights & Measures Act. 4.7 The issue that arises is whether such combination packages have been notified under Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n though the individual commodities on the package attract a uniform abatement level. In the net result, in the scheme of notification issued under Sec-4A of the Act, it is not possible to assess "Combination package" under MRP based valuation procedure laid down under Sec.4A of the Act. 4.10 In legal terms it must be appreciated that there are laws with the widest scope and application, which for sake of simplicity may be called general laws. And there are non- obstinate provisions for specific circumstances or individuals under which the general law gets specifically excluded. The non-obstante provision operates only by way of exception from the general rule. It will be therefore necessary to make a strict construction of the provisions of non-obstinate clause so that situations, persons or things are not treated as exempted from the mischief of the general rule till they have been specifically excluded by virtue of non- obstinate clause. Combination packages of refrigerators, washing machines televisions etc are not mentioned in the notification issued under Section 4A of the Act. I therefore do not find any substance in the appellant's argument that their "co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... I find that the original adjudicating authority has correctly adopted the individual price declarations of the different commodities contained in the combination package for assessing the goods under Section 4A of the Act." 4.3 We find that the issue is no longer res-integra. In the appellants own case Delhi Bench of this Tribunal as reported at [2013 (295) ELT 624 (T-Del)] has held as follows: "1.1 The appellant manufacture various consumer durables like viz. different models of colour T.V. sets, VCDs, washing machines, refrigerators and water purifiers. All these items during the period of dispute i.e. during December, 2002 to May, 2003 and Feb. 2003 to Jan. 2004 were notified under Section 4A of the Central Excise Act, 1944 for determination of their assessable value on the basis of their MRP and accordingly the assessable value of these items, when cleared in packaged form for retail sale, were required to be determined on the basis of their MRP declared on the packages i.e. MRP minus abatement, as notified by the Central Government under by notification issued under Section 4A. During December, 2002 to May, 2003 the appellant cleared a refrigerators of model S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ral excise duty is payable on the goods manufactured in India at the rates specified in the schedule to the Central Excise Tariff Act, 1985 read with exemption notification, if any issued, under Section 5A of the Central Excise Act. When the rate of duty is ad valorem, the value is taken as - (a) tariff value if the tariff value has been fixed under Section 3(2) of the Central Excise Act, 1944 in respect of that item, (b) MRP minus abatement, if the items are sold in packaged form for retail sale and in terms of the provisions of the Standard of Weights and Measures Act, 1976 (SWM Act) and the Rules made thereunder or any other law in force, the maximum retail sale price is required to be declared on the their packages and the items are also notified by notification issued under Section 4A of the Central Excise Act for determination of assessable value on the basis of MRP and (c) on the transaction value determined under Section 4 in other cases, not covered by Section 3(2) or Section 4A. The scheme of assessment of duty under Section 4A is that the Central Government in respect of the items notified under this Section, has also by notification issued under this Section, notified t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which is applicable to the facts of this case and accordingly, the duty payable in respect of the clearances of the combination pack of dissimilar item, both of which notified under Section 4A have to be determined on the basis of their individual MRPs and not on the basis of MRP of the combination pack, which in our view, has no relevance for assessment of duty on the goods being sold as a combination pack. 10. There is one more reason as to why the combined MRP of the combo pack cannot be the basis for determining the assessable value under Section 4A. Rule 15 of the SWM Rules refers to the "combination pack" of dissimilar items which are actually packed in a bigger pack on which MRP is required to be declared. In this case, admittedly the combination packs of Referigerator with water purifiers, Refrigerators with washing machines or CTVs with VCD players are not actually packed in a bigger package. The "combination packs" in this case have to be treated as combination sales as a marketing strategy under which on purchase of two items refrigerator with washing machines, refrigerator with water purifier or CTVs with VCD players, the price charged is less than their individual M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. (4) If any manufacturer removes from the place of manufacture any excisable goods specified under subsection (1) without declaring the retail sale price of such goods on the packages, or declares a retail sale price which does not constitute the sole consideration for such sale, or tampers with, obliterates or alters any such declaration made on the packages after removal, such goods shall be liable to confiscation. Explanation 1. - For the purposes of this section, "retail sale price" means the maximum price at which 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, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale. Explanation 2. - (a....