TaxTMI 
TaxTMI 
2024 (1) TMI 1280
X X X X Extracts X X X X
X X X X Extracts X X X X
....questions of law to a Larger Bench of the Tribunal as it noticed that two Division Benches of the Tribunal in Acme Ceramics vs. Commissioner of Central Excise, Rajkot 2014 (304) E.L.T. 542 (Tri. - Ahmd.) and Schneider Electrical India (P) Ltd. vs. Commissioner of C. Ex., Nashik 2014 (311) E.L.T. 113 (Tri. - Mumbai) had expressed contrary views. The Ahmedabad Bench of the Tribunal in Acme Ceramics held that in the absence of rules for ascertainment of Retail Sales Price RSP having been notified by the Central Government as required under sub-section (4) of section 4A of the Central Excise Act, 1944 the Central Excise Act, it was impermissible for the Revenue officers to make such an "ascertainment" by resorting to best judgment. The Mumbai Bench of the Tribunal in Schneider Electrical, on the other hand, took a contrary view holding that the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 the 2008 Rules which provided for the manner of ascertainment of RSP, though notified on 01.03.2008, were procedural in nature and, therefore, applicable retrospectively to all pending proceedings for the period from 14.05.2003, when sub-section (4) of secti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....13 (Nice Ceramics Pvt. Limited vs. Commissioner of Central Excise & ST, Rajkot) are stated. 7. M/s. Nice Ceramics Limited the appellant is a manufacturer of ceramic tiles and has a factory located at Morbi in the State of Gujarat. The products manufactured by the appellant i.e. tiles are subject to the provisions of the Standard of Weights & Measures Act, 1976 the 1976 Act and require affixation of RSP to be written as the Maximum Retail Price MRP on the retail package. As a consequence, the assessable value of the tiles manufactured and cleared by the appellant is required to be determined not in terms of the usual valuation provision contemplated in section 4 of the Central Excise Act, but in terms of section 4A of the Central Excise Act. The appellant printed and declared MRP on the packing of the products. It is stated by the appellant that all clearances have to be assessed under section 4A of Central Excise Act by applying the MRP of the product as applicable at Morbi and the assessable value has to be determined by granting abatement of 45% in terms of the Notification dated 01.03.2002. Thus, if the MRP of the product declared at the factory gate was Rs. 100/-, the assess....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bers for the reason that the decision rendered in Schneider Electrical was rendered by a Bench comprising three members. The reason given is that in Schneider Electrical the difference of opinion between the two members constituting the Division Bench had been referred to a third member and so the strength of the Bench should be taken as three. In support of this contention, learned special counsel placed reliance upon a decision of the Supreme Court in Trimurthi Fragrances (P) Ltd. vs. Govt. of N.C.T. of Delhi 2022 (382) E.L.T. 149 (S.C.) and upon a decision of the Larger Bench of Tribunal in Larsen & Toubro Ltd. vs. Commissioner of Service Tax, Delhi 2013 (32) S.T.R. 410 (Tri. - Del.). 11. Shri Devan Parikh, learned senior counsel and Shri Vipin Jain, learned counsel, however, submitted on behalf of the appellants that there is no necessity of referring the matter to a Bench of more than three members as the decision of the Tribunal in Schneider Electrical is a decision rendered by a Division Bench and not by a Bench comprising of three members. In support of this contention, reliance has been placed upon the Constitution Bench judgment of the Supreme Court in Pankajaksh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....: "14. On principle and in the light of the observations of the Delhi High Court in Puri (P.C.), we are of the considered view that wherever pursuant to a conflict opinion in a decision by a Division Bench, the conflict is referred to a Third Member of this Tribunal for resolution, the resultant judgment must be considered the judgment of a Full Bench, as if it were a judgment of a Larger Bench (three ld. Member) sitting en banc." 16. Learned counsel for the appellant, however, referred to a Constitution Bench decision of the Supreme Court in Pankajakshi wherein it has been observed that a reference to a third member does not enlarge the coram of the Bench. 17. Following the aforesaid decisions of the Constitution Bench, a learned member of the Mumbai Bench of the Tribunal in Alberto Bestonso also observed: "4. I have carefully considered the submissions made by both the sides and perused the records. I find that the issue can be decided on the basis that whether the appellant is eligible for immunity from penalties in case when the main appellant"s case was settled before the Settlement Commission. In this regard, I find that there are various contrary deci....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under 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. 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. Explanation 2. - Where on an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds 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 shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. 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: Provided that in case the provisions of the Act, rules or other law ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed or obliterated after the removal of goods from the place of manufacture i.e. a case of post removal alteration or tampering of RSP. 30. In each of the above three situations, sub-section (4) of section 4A provides for the following two consequences: (a) Confiscation of such goods; and (b) Ascertainment of the RSP of such goods in the prescribed manner which would then be deemed to be the RSP for the purposes of section 4A. 31. The expression "prescribed" used in sub-section (4) of section 4A is defined in section 2(g) as under: "2(g) "prescribed" means prescribed by rules made under this Act;" 32. In terms of section 37 of the Central Excise Act, it is only the Central Government which is empowered to make Rules to carry into effect the purposes of the Act. Section 38(1) further requires that all Rules made under the Act shall be published in the Official Gazette. 33. Though sub-section (4) of section 4A read with section 2(g), section 37 and section 38 of the Central Excise Act makes it clear that the power to prescribe the manner of ascertainment of RSP vests only with the Central Government, this legal position is also evident and explicit fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he RSP in such case (Rules for ascertaining RSP) will be prescribed subsequent to enactment of Finance Bill, 2003." CBEC Circular No.B-3/5/2003-TRU dated 30.04.2003 " 1.2 Clause 129 which seeks to amend section 4A so as to enable the Government to ascertain the retail sale price (RSP), in cases where either RSP is not declared or incorrect RSP is declared, has been amended so as to provide that the RSP in such cases shall be determined in the manner prescribed by the Government. Consequently, the Government will only need to prescribe the manner for ascertaining the RSP, while the actual ascertainment of RSP is delegated to the field officers." 34. In exercise of the powers conferred by section 37 read with sub-section (4) of section 4A, the Central Government made the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, which have been referred to as the 2008 Rules. 35. These rules were notified by a notification dated 01.03.2008 and they came into force from the date of their publication in the Official Gazette i.e. 01.03.2008. They are reproduced below: "Central Excise (Determination of Retail Sale Price of Excisabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) or clause (ii), then, the highest of the retail sale price, so ascertained, shall be taken as the retail sale price of all such goods. Explanation. - For the purposes of this rule, when retail sale price is required to be ascertained based on market inquiries, the said inquiries shall be carried out on sample basis. 5. Where a manufacturer alters or tampers the retail sale price declared on the package of goods after their removal from the place of manufacture, resulting into increase in the retail sale price, then such increased retail sale price shall be taken as the retail sale price of all goods removed during a period of one month before and after the date of removal of such goods: Provided that where the manufacturer alters or tampers the declared retail sale price resulting into more than one retail sale price available on such goods, then, the highest of such retail sale price shall be taken as the retail sale price of all such goods. 6. If the retail sale price of any excisable goods cannot be ascertained under these rules, the retail sale price shall be ascertained in accordance with the principles and the provisions of section 4A of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trical have not been properly appreciated; (iii) The contention of the department that the 2008 Rules are procedural in nature and would apply retrospectively is not correct; (iv) The contention of the department that section 4A of section 4 of the Central Excise Act would become redundant is not correct; and (v) The contention of the department that the process of "ascertainment" under section 4A (4) of the Central Excise Act is not the same as "determination" of value and being procedural in nature cannot confer any vested right upon an assessee who has mis-declared the RSP, is not correct. 38. Shri P.R.V. Ramanan, learned special counsel appearing for the department made the following submissions, apart from the preliminary submission that has already been considered: (i) The date of discovery of the contravention, as enumerated in sub-section (4) of section 4A, should be the relevant date for reckoning so far as the applicability of the 2008 Rules are concerned; (ii) Sub-section (4) of section 4A mentions only "ascertaining" the RSP in the prescribed manner and not "determining" the RSP; (iii) The process of ascertainment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 1976 Act, to declare on the package thereof the RSP of such goods, to which the provisions of sub-section (2) shall apply. Section 4A, as it then stood, did not provide for the effect of non-declaration of RSP on the package or wrongful declaration of the RSP or alteration or obliteration of the RSP on the package. The legislature did add sub-section (4) to section 4A in 1999, but this was restricted to confiscation of goods where RSP was not declared on the package or RSP did not constitute the sole consideration for such sale or it was tampered with or altered after removal. The amendment, therefore, did not provide for raising of any demand or ascertainment of the actual RSP in such cases. It was in 2003 that the existing sub-section (4) of section 4A was substituted w.e.f. 14.05.2003. Apart from providing for confiscation of goods, the substituted sub-section (4) of section 4A also provided that "the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section". 42. Section 2(g) defines "prescribed" to mean "prescribed by rules made under this Act". Section 37 rela....
X X X X Extracts X X X X
X X X X Extracts X X X X
....impermissible for any adjudicating authority to ascertain the RSP by any other methodology, for such an ascertainment would not only be contrary to the statutory prescription contained in sub-section (4) of section 4A, but would also amount to substituting the words "in the prescribed manner" and would have the effect of empowering an adjudicating authority to determine for itself the manner of ascertaining the RSP. 47. The judgment of the Supreme Court in Municipal Corporation of Greater Mumbai needs to be referred to in support of the aforesaid view. The Mumbai Municipal Corporation Act 1888 was amended in 2009. The amended section 140A permitted the Corporation to levy property tax on the basis of "capital value" of the building. Section 154 (1-A) specifically provided that the "capital value" of the building shall be fixed by the Commissioner in the manner provided therein. However, clause (e) of section 154 (1-A) provided that such other factors as may be specified under sub-section (1-B) should also be considered. Sub-section (1-B) of section 154 (1-A) enabled the Commissioner, with the approval of Standing Committee, to frame rules. The rules were framed late, as in the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gers, the levy and collection of development fees from the passengers would be without authority of law. The Supreme Court laid emphasis on the language used "at the rate as may be prescribed" and distinguished other judgments where such a language was not used. Paragraph 15 of the judgment of the Supreme Court is reproduced below: "15. Once we hold that the development fees levied under Section 22A is really a cess or a tax for a special purpose, Article 265 of the Constitution which provides that no tax can be levied or collected except by authority of law gets attracted and the decisions of this Court starting from The Trustees of the Port of Madras v. M/s Aminchand Pyarelal & Ors . (supra), cited on behalf of the Union of India and DIAL and MIAL on the charges or tariff levied by a service or facility provided are of no assistance in interpreting Section 22A. It is a settled principle of statutory interpretation that any compulsory exaction of money by the Government such as a tax or a cess has to be strictly in accordance with law and for these reasons a taxing statute has to be strictly construed. As observed by this Court in Ahmedabad Urban Development Authority v. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rules, as provided in Section 22A of the 1994 Act, development fees could not be levied on the embarking passengers at the two major airports." (emphasis supplied) 49. It needs to be noticed that in the aforesaid judgment, the Supreme Court relied upon the Constitution Bench judgment of the Supreme Court in Mohammad Hussain Gulam Mohammad and the decision of the Supreme Court in Dhrangadhra Chemical Works Ltd. vs. State of Gujarat & Ors (1973) 2 SCC 345. 50. The decision of the Constitution Bench of the Supreme Court in Mohammad Hussain Gulam Mohammad, therefore, needs to be considered. Section 11 of the Bombay Agriculture Produce Markets Act 1939 gives power to the Market Committee, subject to the provisions of the rules and subject to such maxima as may be prescribed, to levy fees on the agriculture produce bought and sold by licensee in the market area. The Supreme Court, after noticing that the State Government had not fixed any maxima, held that it would not be permissible for the Market Committee to fix any fees under section 11. The relevant observations are: "It will be noticed that s. 11 provides for levy of fees to be fixed by the market committee, subject ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s aspect, therefore, needs to be examined. Procedural 54. The issue as to whether the 2008 Rules are procedural in nature or not assumes importance for the reason that it is only if they are procedural in nature that it can it be contended by the department that the 2008 Rules would apply retrospectively to all proceedings even before the 2008 Rules came into force w.e.f. 01.03.2008. The contention of the department is that though the 2008 Rules may have come into force from 01.03.2008, but they would apply retrospectively to all proceedings after sub-section (4) of section 4A was substituted on 14.05.2003. The contention of the appellant, however, is that the provisions of the 2008 Rules are substantive in nature and, therefore, would apply prospectively. 55. At this stage, distinction between substantive provisions and procedural provisions needs to be understood. 56. The distinction between substantive law and procedural provisions has been enumerated in Black"s Law Dictionary (Sixth Edition paragraph 1203) as follows: "As a general rule, laws which fix duties, establish rights and responsibilities among and for persons, natural or otherwise, are "substantiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4A was substituted on 14.05.2003 that apart from confiscation of goods, the RSP of goods removed under the three conditions enumerated therein could be ascertained in the manner prescribed and the said price would be deemed to be the RSP for the purposes of section 4A. What needs to be noted is that section 4A does not itself provide a method for ascertaining the RSP of the goods as it merely provides that it shall be ascertained in the prescribed manner. Subsequently, the 2008 Rules were framed on 01.03.2008 for determination of the RSP of excisable goods. Rule 3 provides that the RSP of any excisable goods under sub-section (4) of section 4A shall be determined in accordance with the rules, i.e. the 2008 Rules. Rule 4 provides for ascertaining the RSP of the goods. It is, therefore, concerned with the quantification of duty. A rule which prescribes the basis of duty cannot be considered to be merely procedural, more so when under sub-section (4) of section 4A, the RSP that is determined under the rules shall be deemed to be the RSP for the purposes of section 4A. Rule 4 which provides for determining the RSP is, therefore, a rule which fixes a measure or value of RSP and would h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntive element of the said amendments is identifying and recognizing certain communities as SEBCs. Thus, we see no force in the submission of the appellants that the 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect." (emphasis supplied) 63. It would also be pertinent to refer to the decision of the Supreme Court in Larsen & Toubro. The issue that arose for consideration before the Supreme Court was whether service tax can be levied on indivisible works contracts prior to the introduction of the Finance Act 2007 on 01.06.2007 which expressly makes such works contracts liable to service tax. The Delhi High Court in G.D. Builders vs. Union of India and Anr. 2013 (32) S.T.R. 673 (Del.) had held that service tax can be levied on the service component of any contract involving service with sale of goods and that computation of service component is a matter of detail and not a matter relating to imposition of service tax. It was, therefore, held to be procedural and merely because no rules had been framed for computation would not mean that service tax could not be leviable. The Delhi ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessment of such tax, which is wholly incorrect. The extracted passage from Mahim Patram's case only referred to rules not being framed under the Central Act and not to rules not being framed at all. *****. 35. The aforesaid finding is in fact contrary to a long line of decisions which have held that where there is no machinery for assessment, the law being vague, it would [not] be open to the assessing authority to arbitrarily assess to tax the subject. ***** 43. We need only state that in view of our finding that the said Finance Act lays down no charge or machinery to levy and assess service tax on indivisible composite works contracts, such argument must fail. This is also for the simple reason that there is no subterfuge in entering into composite works contracts containing elements both of transfer of property in goods as well as labour and services." (emphasis supplied) 64. The aforesaid discussion leads to be inevitable conclusion that the 2008 Rules are not procedural in nature. In this view of the matter it is not necessary to examine the contention of the learned special counsel appearing for the department that statutes dealing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ple is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled." ***** 105.3. This precisely is the principle which applies in construing whether the power which is conferred by Section 8A of the Customs Tariff Act is retrospective. The provisions of sub-sections (3) and (4) of Section 7, which are made applicable by sub-section (2) of Section 8A, are to ensure Parliamentary oversight. But that does not enable the Central Government to exercise the power under section 8A with retrospective effect. 106. In Federation of Indian Minerals Industries vs. Union of India, a three judge Bench of this Court formulated th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the RSP, even if RSP is not in accordance with the law, is faulty as the prescribed manner of determination of RSP was brought into statute only from 01.03.2008. The Division Bench further observed that since the Central Government had not framed the rules for determining the RSP in a case where the RSP declared on the package was sought to be rejected, the authorities had no power to determine the RSP. 69. However, in Schneider Electrical the two learned members of the Division Bench hearing the appeal expressed contrary views as a result of which the issue was referred to a learned third member. The learned member (judicial) constituting the Division Bench held that the demands for the period prior to 01.03.2008 would not be sustainable as there was no provision to determine the RSP. The learned member (technical), however, observed that during the period from 14.05.2003 to 01.03.2008 there was no bar in adopting a reasonable/best judgment method to make section 4A operational and that the 2008 Rules merely provided guidelines to the assessing officers. The learned member (technical) placed reliance upon the decision of the Supreme Court in Mahim Patram to support this vie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ammad Hussain Gulam Mohammad were distinguished by the third learned member for the following reasons: "29.2.10 In the present case, the charging section provides for the levy, the rate of tax is specified in the schedule, the person liable to pay the tax is the manufacturer of the goods under Rule 4 of the Central Excise Rules, 2002 and the measure of tax is defined under Section 4A. Thus, all the core ingredients of the tax system is specified in the law. The Rules 2008 merely provides for ascertainment of the measure of tax in a situation where it is not declared. Therefore, the ratio of these decisions has no application whatsoever to the facts of the present case and the arguments raised by the appellants in this regard have to be rejected. In view of the above, I hold that the demand for the period prior to 1-3-2008 and after 14-5-2003 when the Government acquired the power to frame the Rules is sustainable as MRP of the product can be determined by using reasonable means." 73. It is seen that the learned member (technical) constituting the Division Bench mainly placed reliance upon the decision of the Supreme Court in Mahim Patram and the learned third member to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, promulgated rules known as the Wealth Tax Rules 1957. Rule 1-BB came to be inserted by the Wealth Tax (Amendment) Rules 1979 w.e.f. 01.04.1979. The Supreme Court examined the scope of rule 1BB of the Wealth Tax Act and found that it was essentially a rule of evidence. The observation are as follows: "8. We may now turn to the scope and content of Rule 1BB. The said Rule merely provides a choice amongst well-known and well-settled modes of valuation. Even in the absence of Rule 1BB it would not have have been objectionable, nor would there be any legal impediment, to adopt the mode of valuation embodied in Rule 1BB namely, the method of capitalisation of income on a number of years' purchase value. The rule was intended to impart uniformity in valuations and to avoid vagaries and disparities resulting from application of different modes of valuation in different cases where the nature of the property is similar. ***** 9. On a consideration of the matter we are persuaded to the view that Rule 1BB is essentially a rule of evidence as to the choice of one of the well accepted methods of evaluation in respect of certain kinds of properties with a view t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely, the mode of capitalisation of income on a number of years purchased value. The said judgment is, clearly, distinguishable in context of issue which has arisen before us. In the present case, methodology as provided under Rule 8D was neither a well-known nor well-settled mode of computation. The new mode of computation was brought in place by Rule 8D. No Assessing Officer, even in his imagination could have applied the methodology, which was brought in place by Rule 8D. Thus, retrospective operation of Rule 8D cannot be accepted on the strength of law laid down by this Court in the above case. 47. One of the submissions raised by the learned counsel for the assessee also needs to be noticed. Learned counsel for the assessee submits that it is well settled that subordinate legislation ordinarily is not retrospective unless there are clear indication to the same. Reliance has been placed on judgment of this Court in State of Jharkhand & Ors. Vs. Shiv Karampal Sahu, (2009) 11 SCC 453. In para 17 following has been stated: "17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The Circular Letter dated 752003 was given....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a). In that case, Section 7(1) of the Wealth Tax Act, 1957 was challenged as ultra vires the Parliament on inter alia the ground that no rules were framed in respect of the valuation of lands and buildings and this Court repelled the challenge and held that Section 7 only directs that the valuation of any asset other than cash has to be made subject to the rules and does not contemplate that there shall be rules before an asset can be valued and failure to make rules for valuation of a type of asset cannot therefore affect the vires of Section 7. In Section 22A of the 1994 Act, on the other hand, the levy or development fees was to be at the rate as prescribed by the Rules and hence could not be made without the rules. All other decisions starting from T. Cajee v. U. Jormanik Siem & Anr. cited on behalf of the Union of India, DIAL and MIAL on this point are cases where the statutory power could be exercised without the rules or the regulations, whereas the power under Section 22A of the 1994 Act to levy development fees could not be exercised without the rules prescribing the rate at which development fees was to be levied." ( emphasis supplied ) 81. In the present case....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... become redundant or otiose if what is contended by the department is not accepted. Even for the period prior to 01.03.2008, sub-section (4) of section 4A would not become redundant in connection with an assessee who either failed to declare the RSP or mis-declared the RSP. The department could absolutely confiscate the offending goods. What changed after the coming into force of the 2008 Rules w.e.f. 01.03.2008 is that in addition to the confiscation of goods, the department could also demand and recover additional duty on such goods by ascertaining the RSP. It is, therefore, not possible to accept the contention of the learned special counsel nor is it possible to accept the view taken by the learned third member in Schneider Electrical that absurd consequences would flow if the 2008 Rules are not applied retrospectively or that the executive would be left powerless. 87. Learned special counsel for the department also contended that the process of "ascertainment" under sub-section (4) of section 4A is not the same as "determination" of value, and being procedural in nature cannot confer any vested right upon a delinquent assessee who has misdeclared the RSP. 88. The distinc....