TaxTMI 
TaxTMI 
2024 (5) TMI 478
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....d., SIPCOT, Sriperumbudur. 1.2 It was discovered by the officers that there were 16,331 Nos. of laptop computers ready for supply to M/s.ELCOT with Tamil Nadu Government Logo pasted in the form of sticker on the carton boxes and a rubber stamping with the words 'Box 1&2 shipped with combined MRP of Rs.16,899/-'. On enquiry, it revealed that the laptop bags were purchased locally and packed in a box along with laptop computer and a combined MRP of Rs.16,899/- had been affixed in respect of both laptop computer and the laptop bag. Copies of several tax invoices billed to various schools in Nilgiris District, Tamil Nadu were also found and seized. 1.3 In addition to the aforesaid laptops, 25,512 Nos. of Acer Brand laptops meant for supplying to M/s. Rajcomp Info Services Ltd., for free distribution to the students of Rajasthan was also discovered. An offence for evasion of duty in respect of these laptops (for supply to M/s.Rajcomp) were also registered by the Department for which Show Cause Notice was issued separately. In the present case, the dispute is with regard to the notebook / laptop computers meant for supply to M/s.ELCOT for free distribution to schools in Tamil Nadu ....
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....of laptop bag is Rs.2500/-. The appellant had affixed the new MRP for supply to ELCOT after packing the laptop along with the carry bags, and therefore the difference in MRP at the time of import (Rs.14,399/-) and at the time of supply to M/s.ELCOT (Rs.16,789/-). 1.7 It appeared to the Department that the appellant had undervalued the MRP at the time of import of laptop to evade payment of Countervailing Duty (CVD). Show Cause Notice dated 08.08.2017 was issued proposing to reject the MRP declared by the appellant in the Bills of Entry and to re-determine the same under Section 4A of the Central Excise Act, 1944 read with Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008. Show Cause Notice proposed to demand differential CVD along with interest and also proposed to impose penalties, besides proposing to hold the goods liable for confiscation. After due process of law, the Original Authority rejected the MRP declared by the appellant at the time of import and re-determined the same. Adjudicating Authority ordered for confiscation of the goods, confirmed the demand of differential duty (CVD) along with interest and an option was given to redeem the....
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....he ELCOT Purchase Order price as above was a lump-sum price for the entire bundle of supply including laptop and laptop bags. There was no break-up of individual items to be supplied under the contract. 2.7 For undertaking supplies to ELCOT, the Appellant imported laptops from M/s. Acer Inc., Taiwan. However, the Appellant procured laptop bags with MRP of Rs. 2,500/- from a local vendor at a price of Rs. 225/- (inclusive of VAT). 2.8 The MRP of imported laptops were determined by appellant for supply to ELCOT as the total price agreed with ELCOT (less) the MRP of locally procured bags i.e., Rs. 2,500/-. Case of the Department: 2.9 It is submitted by the Ld. Counsel that pursuant to the investigation by SIIB in 2013, the Revenue initiated proceedings against the Appellant vide Show Cause Notice dated 08.08.2017 alleging the following: a) Firstly, the price initially quoted by the Appellant to ELCOT for supplying the laptops along with bags etc. ("Quoted price") (plus 5% VAT) is inclusive of all elements of costs of the laptop and denotes the actual MRP of the laptop with the backpack. Therefore, it is the quoted price and not the finally agreed purchase order pr....
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....s. 3.3 Pertinently, Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 ("RSP Rules") to operationalise Sub-section (4) of Section 4A were framed only with effect from 01.03.2008. Thus, during the period from 2003 to 2008, no rules were prescribed for re-determining MRP of excisable goods. Resultantly, even if the MRP declared was found to be incorrect, there was no machinery which empowered the Department to redetermine the MRP for the purposes of payment of central excise duty. 3.4 In this context, for the period prior to introduction of RSP Rules, 2008, the Larger Bench of Tribunal recently, in the case of Ocean Ceramics, Interim Order No.1-23/2024 dt. 23.1.2024 in Excise Appeal No.235 of 2008 has held that the RSP rules are substantive in nature and in the absence of any machinery prior to such period for re-determination, MRP cannot be re-determined. The RSP Rules have not been made applicable to Section 3(2) of Customs Tariff Act, 1975: 3.5 Section 3 (1) of Customs Tariff Act, 1975 provides for levy of CVD equal to the excise duty leviable on a like article if produced or manufactured in India. In addition to general provision for pa....
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....g decisions, wherein it has been held that MRP/RSP of imported goods cannot be re-determined with reference to the provisions of Section 4A (4) of the Central Excise Act, 1944 and the RSP Rules, 2008: a) ABB Ltd. v. CC [2011 (272) E.L.T. 706 (Tri. - Bang.)] - Civil Appeal No. 7147 of 2011 has been filed by Department before Supreme Court - No stay on CESTAT order b) CC v. V.J. Traders [2019 (366) E.L.T. 909 (Tri. - Del.)] - Civil Appeal No. 844/2019 has been filed by Department before Supreme Court - No stay on CESTAT order c) CC v. King Kaveri Trading Co. [2019 (370) E.L.T. 1049 (Tri. - Mumbai)] d) DS Chandok & Sons v. CC [2021 (9) TMI 417 - CESTAT MUMBAI] e) Legrand India Pvt. Ltd. v. CC [2014 (304) E.L.T. 305 (Tri. - Mumbai) - Civil Appeal Nos. 7320-7323 of 2014 have been filed by Department before Supreme Court - No stay on CESTAT order. 3.10 As above, even in the context of levy of excise duty under Section 4A of Central Excise Act, 1944, the Larger Bench in Ocean Ceramics case (supra), has held that the RSP Rules framed on 01.03.2008 is substantive and cannot be applied retrospectively for the period prior to 2008. The said deci....
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....odologies alien to the principles and provisions of the Rules. Such unbridled powers cannot be assumed to be conferred for determining value under the best judgment method. If it is assumed, then it will render the provisions arbitrary and constitute a violation of Article 14 of the Constitution. Even the validity of the Rules would be brought to question. Thus, there is a purpose behind ensuring that the best judgment method is applied subject to the principles and provisions of the preceding Rules which act as reasonable guidelines. 4.7 Moreover, the best judgment method only allows some elbow room or reasonable flexibility in valuation while applying the methodology already prescribed. 4.8 In State of Kerala v. C. Velukutty [1965 (12) TMI 32 - SUPREME COURT], the Apex Court has held that though there is an element of guesswork in a "best judgment assessment", it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case. The same principle has also been reiterated in SG Jayaraj Nadar & Sons v. State of Madras [1967 (7) TMI 106 - MADRAS HIGH COURT] subsequently affirmed by Hon'ble Supreme Court in State of Madras ....
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....liance in this regard is placed on the decisions of the Hon'ble Supreme Court in CCE v. Acer India Ltd. [2004 (172) E.L.T. 289 (S.C.)] and Gannon Dunkerley and Co. and Ors. v. State of Rajasthan & Ors. [(1993) 1 Supreme Court Cases 364]. Thus, the computation methodology adopted by the Department is ex facie arbitrary. Further, the Customs Department, under the garb of re-determining MRP of imported laptops cannot question MRP of laptop bags as well as the composite supply of laptops and laptop bags. 4.14 As noted in the impugned order, the Appellant arrived at the MRP of the imported laptops by subtracting the MRP of backpack i.e., Rs. 2,500/- from the ELCOT Purchase Order price. 4.15 It is pertinent to note that the said MRP was affixed on the laptop backpack by the local vendor itself and not at the instruction of the Appellant. This has not been controverted in the impugned order except for a plain statement that the Appellant has tried to offset loss by getting MRP of laptop bags/backpacks declared as Rs. 2,500/-. 4.16 The Appellant submits that the impugned order by ordering re-determination of MRP of laptops by taking ELCOT quoted price as MRP of laptop + bag and....
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....uming without admitting that it is the purchase price of bags that is to be deducted i.e., Rs. 225/-, it must be deducted from the finally agreed ELCOT purchase order price and not the quoted price. Details of the quoted price (MRP affixed for supply to ELCOT) and ELCOT purchase order price during the relevant period is shown below:- Sl. No. Period of Import Quantity of Imports Quoted Price (inclusive of VAT) ELCOT Purchase Order Price per Unit (with VAT) (A) 1. May to August 2012 200250 17,586 13,939 2. Mar-April 2013 96095 18,097 16,790 3. May-June 2013 110000 18,097 16,790 4. May-Jun 2014 130950 Not Available 16,486 6. Without prejudice, Laptop bags sold in the normal market, are purchased by the Appellant at Rs. 460.78/- and sold with an MRP of Rs. 1,499/-. Therefore, in any case, the MRP of the laptop bags in question cannot be treated to be below Rs. 1,499/- : 6.1 In the impugned order, it has been held that the laptop bags in question bearing MRP of Rs. 2,500/- have been purchased at a price of Rs. 225/- whereas laptop bags sold in normal market bearing an MRP of....
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....e laptops. When specifically questioned as to why they declared a low MRP of Rs. 14,399/- when the actual sale price for the laptop supplied to ELCOT is Rs. 15,990/-, he stated that the laptop sale price was inclusive of the cost of the carry bag also and therefore the combined price of the laptop and carry bag has to be taken into consideration while comparing the sale price to ELCOT. In fact, on 20.09.2013, Mr. BK Prakash was specifically questioned by the Department as to who decided on the high MRP of Rs. 2500/- for the laptop bag purchased at a low price of Rs. 225/-. 7.5 This clearly establishes that all the facts relating to procurement of bags locally for Rs. 225/-, supply of laptops along with bags to ELCOT at Purchase Order price, were within the knowledge of the Department as early as 04.07.2013/12.07.2013. Resultantly, the Appellant submits that invocation of extended period for issuance of Show Cause Notice after a period 4 years from the date Department came to know about the impugned imports and the valuation methodology adopted cannot be sustained as no suppression can be alleged on part of the Appellant. 7.6 In CCE v. Essel Propack Ltd., [2015 (323) E.L.T. 24....
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....er that Act." 8.2 The Appellant submits that, on a reading of the above provision, it is clear that Section 3 of CTA which levies duties other than Basic customs duty borrows the procedural provisions of Customs Act, however substantive provisions relating to penalty, confiscation, fine and interest from the Customs Act is not explicitly borrowed. 8.3 In this regard, the Bombay High Court in Mahindra & Mahindra Ltd. v. Union of India [2022 (10) TMI 212 - BOMBAY HIGH COURT] has considered a similar issue on levy of interest and penalty in relation to CVD and held that in the absence of specific provisions for levying of interest or penalty due to delayed payment of tax, the same cannot be levied/charged unless the statute makes a substantive provision in this behalf. This decision of the Hon'ble Bombay High Court has been affirmed by the Hon'ble Apex Court in Union of India Vs Mahindra and Mahindra Ltd, [2023 (8) TMI 135 - SC ORDER]. Further, the Review Petition filed by the Department has also been dismissed vide order dated 09.01.2024 in Review Petition (Civil) Diary No. 41195/2023. 8.4 Further, the Tribunal in Acer India Private Ltd. v. CC, Chennai, 2023-VIL-998-CESTAT-C....
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....ation of the impugned goods, the demand of differential Countervailing Duty (CVD) along with interest, the imposition of Redemption Fine and penalties are sustainable or not. 11.1 According to department, the appellant has undervalued the goods imported by declaring a lesser MRP and thus evaded payment of Countervailing Duty (CVD). 11.1.1 It is to be noted that the imports were registered under Special Valuation Branch as the importer and supplier were admittedly related parties. The SVB Order No.465/2013 dt. 25.04.2013 was passed accepting the transaction value with its' foreign supplier in terms of Rule 3 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007. The Basic Customs duty, if any has to be discharged by appellant on the basis of the transaction value agreed by the parties. In the present case, the imported laptops were exempted from payment of Basic Customs Duty (BCD) as well as Special Additional Duty of Customs (SAD) in terms of Notification No.24/2005-Cus. dt. 17.3.2012 respectively. The laptops being goods covered under the Legal Metrology Act, 2009 read with Legal Metrology (Packaged Commodities) Rules, 2011, it is incumbent for the appe....
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....e and scheme name) shall be marked on the top side of the laptop computers and front side of the laptop computer backpack". 14. The letter issued by ELCOT to appellant dated 17.4.2013 and the purchase order dt. 30.05.2013 is reproduced as under : 15. The purchase price is Rs.15,990 plus 5% TNVAT (15,990 + 799.50 = 16,789.50). The above documents would show that the purchase price agreed by appellant and ELCOT was for supply of laptop with carry bag / backpack. It also included supply of user manual in Tamil and English as a single booklet and Do's and Don'ts instruction guide in Tamil and English. The appellant has purchased backpack locally. In such circumstances the appellant, no doubt, is entitled to add this value while supplying to ELCOT. It is not a case where only the imported laptop computer is supplied to ELCOT. According to appellant, they procured the backpack which has market price of Rs.2500/- at a negotiated price of Rs.225/-. The appellant has affixed the new increased MRP on the basis of purchase price agreed with ELCOT. This purchase price includes the price of laptop computer, backpack, the booklet, instruction guide etc. 16.....
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....16,331 Nos. of "ASPIRE E1-431 Part No.NX. M8VSI.001" laptop computers with Tamil Nadu Government Logo pasted in the form of sticker on the carton boxes and a rubber stamping with the words "Box 1&2 shipped with combined MRP of Rs.16,899/-." In the said godown. On enquiry, it was confirmed that the laptop bags were purchased locally and packed in a box and that a combined MRP of Rs.16,899/- had been affixed in respect of both laptop computer and the laptop gag. Copies of several tax invoices billed to various schools in Nilgiris District were also found and detained." 18. On the basis of this combined new MRP, department has arrived at a conclusion that the appellant has misdeclared the MRP at the time of import. According to department, if Purchase Order is taken as the basis of MRP, the said MRP is to be inclusive of all taxes and costs involved. The MRP declared at the time of import was lesser than the transaction value. The department has thus rejected the MRP declared at the time of import and proceeded to redetermine the MRP to demand differential CVD. According to department, since the final bid price with M/s.ELCOT is inclusive of all cost structures, it implies that the....
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....f the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act; or (ii) the goods specified by notification in the Official Gazette under section 3 read with clause (1) of Explanation III of the Schedule to the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, be notification in the Official Gazette, allow in respect of such like article under clause (2) of the said Explanation. Explanation. - Where on any imported article more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section." 20. The above provision states that for payment of CVD on imported goods notified under subsect....
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....of section 4A of the Act, - (a) without declaring the retail sale price on the packages of such goods; or (b) by declaring the retail sale price, which is not the retail sale price as required to be declared under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or rules made thereunder or any other law for the time being in force; or (c) by declaring the retail sale price but obliterates the same after their removal from the place of manufacture, then, the retail sale price of such goods shall be ascertained in the following manner, namely :- (i) if the manufacturer has manufactured and removed identical goods, within a period of one month, before or after removal of such goods, by declaring the retail sale price, then, the said declared retail sale price shall be taken as the retail sale price of such goods : (ii) if the retail sale price cannot be ascertained in terms of clause (i), the retail sale price of such goods shall be ascertained by conducting the enquiries in the retail market where such goods have normally been sold at or about the same time of the removal of such goods from the place ....
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....er sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, 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) Where any goods specified under sub-section (1) are excisable goods and the manufacturer - (a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods sha....
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.... the case of ABB Ltd. Vs Commissioner of Customs, Bangalore - 2011 (272) ELT 706 (Tri.-Bang.) considered this issue for the period prior to 1.3.2008 (disputed period 3.1.2003 to 31.3.2007) and held that there is no machinery / provisions for ascertaining RSP, when the RSP is not declared by importer on imported articles. The differential CV Duty demand, interest and penalties were set aside. The provisions under Section 3 of Customs Tariff Act, 1975 for CVD on notified goods remain to be the same and this case is therefore squarely applicable. The relevant paras are reproduced as under : "2. Facts of the case in brief are as follows. Pursuing intelligence that M/s. ABB Ltd., Bangalore (ABB) was importing electrical apparatus falling under Chapter Heading 85.36 of Customs Tariff Act, 75 (CTA) and Central Excise Tariff Act (CETA, '85) and selling the same from their warehouse to their channel partners (dealers) & others, mis-classifying them under 8538 of CTA & CETA in the Bills of Entry without declaring their Retail Sale Price (RSP) for the assessment of CVD under Section 3 of the CTA read with Section 4A of Central Excise Act, 1944 (CEA) and Notification No. 13/2002-C.E. ....
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.... with effect from 1-1-2005, which, in corollary would be that no service tax is payable by this category prior to 1-1- 2005. If that by (sic) so, then the amount paid by the appellant is not a tax, which the revenue cannot kept (sic) with it." 18. Excerpts from the Apex Court's judgment in the case of National Insurance Co. Ltd. (supra) were cited by the revenue in support of the claim that the retail sale price could be validly determined even in the absence of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 following the principles informing the legislative policy prescribing RSP as the value. We find that the judgment elaborately deals with interpretation of the language of a statute in such a manner to effectuate the intention of the legislature. In the case on hand, we are not faced with the task of interpreting a provision which can accommodate more than one meaning. We are also faced with the argument of the assessee that when RSP was not declared on the packages, the same had to be ascertained in the manner prescribed in the statute. As regards the CVD levied under CTA on goods notified for RSP based assessment, CTA does not have ....
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....n of the grounds of appeal by the Revenue, we note that grounds of Revenue is with reference to suppression of facts on import in misdeclaring the MRP and non-applicability of the cited case laws relied upon by the Commissioner (Appeals). In this connection, we note that the Commissioner (Appeals) categorically recorded that there is no dispute in respect of description, classification and quantity of the impugned goods and the appellant had declared RSP. He, therefore, found that the adjudicating authority could not proceed to determine the MRP/RSP in absence of any enabling provisions in the Customs Tariff Act, 1975 as held by the Tribunal in ABB Ltd. (supra). He also relied on the other decided cases holding similar view. We note that the decision of the Tribunal has not been stayed, though the appeal is still pending before the Hon'ble Supreme Court. As such, we have no reason to interfere with the findings recorded by the impugned order, which has relied on the decision of the Tribunal not reversed by any higher authorities. Accordingly, the appeal is dismissed." 24.2 The Ld. A.R has relied upon the decision in the case of Nitco Tiles (supra). There was difference of opinio....
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.....T. 706 (Tri.-Bang.)] that the fundamental issue is the correctness of application of the Rules framed under Section 4/4A of Central Excise Act, 1944 to an assessment of additional duties of customs under the Customs Tariff Act, 1975. It is seen from the provisions therein that, for the purpose of additional duties of customs, the default mechanism is 'SECTION 3. xxx (2) For the purpose of calculating under sub-sections (1) and (3), the additional duty on any imported article, where such duty is leviable at any percentage of its value, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 (52 of 1962), be the aggregate of- (i) the value of the imported article determined under sub-section (1) of Section 14 of the Customs Act, 1962 (52 of 1962) or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; and (ii) any duty of customs chargeable on that article under section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of....
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....sing under Central Excise Act is relevant to appreciate the applicability of Rules, 2008. The relevant paras are as under : "89. Thus, for the reasons stated above, it is not possible to accept the views expressed by the Division Bench of the Tribunal in Schneider Electrical. Conclusions (i) When sub-section (4) of section 4A of the Central Excise Act, as substituted in 2003, specifically provides that the RSP shall be ascertained in the prescribed manner and the prescribed manner is the manner to be prescribed by the rules to be framed under section 37 of the Central Excise Act read with sub-section (4) of section 4 of the Central Excise Act, the RSP has to be ascertained only in terms of the 2008 Rules; (ii) It is a settled principle of law that a tax or a cess or a duty can be levied strictly in accordance with law and a taxing statute has to be strictly construed. In the present case, the words used in sub-section (4) of section 4A are that the RSP shall be ascertained in the prescribed manner. Thus, any duty of excise which is collected not in accordance with the manner prescribed, would be without authority of law; (iii) It, therefore, f....
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....s to deduct the negotiated price of the backpack (Rs.225/-) from the Purchase order price. The Purchase order Price or bid price is inclusive of items which are not imported. Further, the department has no case that such backpack can be obtained at Rs.225/- from market. All these factors would lead to the conclusion that the redetermined MRP cannot be sustained. Consequently, the demand of differential duty also cannot be sustained and require to be set aside. Ordered accordingly. 28. The Ld. Counsel had adverted to the decision in the case of PG Electroplast Ltd. Vs Commissioner of Central Excise & Service Tax, Noida - 2014 (307) ELT 787 (Tri.-Del.) to argue that in the said case, it was held that for the supplies made by appellant therein to M/s.ELCOT, the MRP was required to be declared and provisions of Section 4A would be applicable even though the goods are intended for free supply to poorer sections of population of Tamil Nadu on behalf of Government of Tamil Nadu. 29. The Ld. Counsel has put forward arguments on the grounds of limitation also. The show cause notice is dated 08.08.2017. the imports are made during the period 09.05.2012 to 09.06.2014. The facts reveal t....
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....Ltd, New No. 5, Old No.3, 2nd Floor, 1st Street, Nandanam, Chennai 600 035. Sir, 17-04-2013 Sub: Distribution of Lapop Computer Scheme - Phase II-2012-13 - Procurement of 7,56,000 numbers of Laptop Computers with Laptop backpacks - ICB Tender-Finalised - Additional Quantity of 1,10,000 numbers - Issue of Letter of Acceptance issued --Regarding. Ref: 1) Tender Notification reference ELCOT/PID/ICB/LTC/PII/2012-13 dated 22.05.2012 opened on 10.08.2012. 2) Price Bids opened on 24.09.2012 3) Negotiation meeting held on 02.11.2012. 4) Your revised quotation Letter no. AIL/CHE/ELCOT/LTC2/061112 dated 06.11.2012. 5) Our Letter of Acceptance LOA ref. ELCOT/PID/ICB/LTC/55/2012-13/003 dated 05.02.2013 for 96,000 numbers. 6) Purchase Order ref. ELCOT/PID/ICB/LTC/PII/2012-13/3 dated 14.02.2013 for 96,000 numbers. 7) Your Letter no.AIL/CHE/ELCOT/PII/2012-13/003 dated 05.03.2013. With reference to the above, we are happy to inform you that we have decided to allot an additional quantity of 1,10,000 number of Laptop Computers with Laptop Backpacks in addition to 96,000 numbers alloted vide LOA fifth cited @ Rs. 15,990.00 (Incl....