TaxTMI 
TaxTMI 
2024 (7) TMI 328
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....ere facilitated by Risk Management System (RMS) without subjecting to assessment and examination in EDI system. The Appellant is a trader and considering that they are not in any manufacturing activities, the respondent commenced investigation regarding the method of valuation adopted while clearing the goods on the ground that the appellant had short paid Countervailing Duty (CVD) by considering the transaction value as per Section 4 of Central Excise Act, 1944 instead of Section 4A of the Central Excise Act, 1944. During investigation, statements were recorded from different persons and the appellant submitted that the goods imported by them are meant for industrial use only. After considering the submissions made by the appellant, Adjudication Authority confirmed the demand of duty by assessing the value of goods under section 4A of Central Excise Act, 1944. Aggrieved by said order, present appeal is filed. 2. When the appeal is taken up for hearing, Learned Counsel for the appellant drew our attention to Rule 2(k) of Legal Metrology (Packaged Commodity) Rules (LMPCR), 2011 and as per the said Rules, the definition of retail packaging means packages which are intended for ret....
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.... "RULE 3. 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." 5. As per the above provisions of Legal Metrology (Packaged Commodity) Rules, 2011 is not applicable to goods which are meant for industrial consumers or institutional consumer. 6. The Learned Counsel also drew our attention to the finding given by the Adjudication Authority; "34.2 From the above, it is clear that the relevant notifications specifying the goods and the abatement percentage for the purpose of assessment have been notified by the Central Government after due consideration of the fact that in terms of the provisions of the Legal Metrology Act, 2009 or the Rules made thereunder or under any other law for the time being in force, it is to declare on the package thereof the retail sale price of such goods. As such, it is suffice to say that the goods that are covered by Description and Tariff Heading under the Notification, ....
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.... that the goods imported are for industrial use and not sold as retailers. Further imported goods cannot be used for any other purpose than industrial use. 8. The Learned Counsel for the appellant also drew our attention to the statements recorded from the manager of the Appellant on 31.12.2012, where to a specific question; "Q.6. Why do you think that your goods are not liable for MRP based assessment? Ans. In the year 2005, Deputy Commissioner, ICD has passed an Order No. 42/2005 dated 22.10.2005 ordering that the goods imported by us are not required to be assessed under MRP based assessment for CVD. Accordingly, at the time of custom clearance we have approached with a copy of the above order and asked the assessing officer, the procedure to clear the live shipments, he asked us to give a declaration and asked us not to declare an MRP, based on the contents of the above order. From then onwards we have been giving the declaration which reads as follows on our letter head." "Q.27. Do you have anything to add? Ans. The nature of goods imported by us is such that they are not intended for use by an individual or consumer for self-use. These g....
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....ages in as much as they are not meant for retail sale and there is no obligation to indicate the RSP either. Under the circumstances, I hold that the provisions of Rule 33 of Standards of Weights and Measurements (packaged commodities) Rules, 1976 does not apply in the instant case thereby Section 4A of Central Excise Act, 1944 is not applicable." 10. Respondent accepted the said findings of the Adjudication Authority and the appellant continued the valuation by following the same method thereafter. 11. Learned Counsel also drew our attention to the Notification No. 44 (RE 2000/1997-2002 dated 24.11.2000, where it is specifically mentioned that all such packaged products which are subject to provisions of Standards of Weights and Measures (Packaged commodities) Rules, 1977 when produced/packed/sold in domestic market, shall be subject to compliance of all the provisions of said rules, when imported into India. The compliance of these shall be ensured before the import consignment of such commodities is cleared by Customs for home consumption. As per the above Notification, the provisions are applicable only, if it is sold in domestic market. 12. Learned Counsel also drew o....
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.... ELT 357 (Tri-Bang.), where it is held that even if a commodity notified under section 4A, if there is no statutory requirement under the law for declaring MRP on packages, cleared by the manufacturer then the assessments have to be done under the section 4 not under section 4A. 15. As regards, the finding given by the Adjudication Authority that the appellant is not a manufacturer and not eligible for claiming the benefit extended to the manufacturers of goods, it is submitted that the issue is settled by this Tribunal in the matter of Remi Sales & Engg. Ltd. Vs. CC, Mumbai - 2019 (365) E.L.T. 142 (Tri.-Mum.) where it is held that; "From the above we find that the goods in question are sold by the Appellant to the hospital is sale to the institutional customer only. The Commissioner (Appeals) has held that an importer cannot be said to be manufacturer or packer of the goods and hence not eligible for exemption. We find that under the rules the importer is person responsible to comply with the Packaged Commodity Rules, 1977. Hence the importer has been treated at par with the manufacturer of goods. In such case for the purpose of levy of CVD the importer shall be respon....
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....bmits that as per the impugned order, the MRP was fixed without following any procedure as laid down in the statues. The investigation Agency is claiming that they have conducted extensive market enquiries with the details of the importers to ascertain the retail price for previous five financial years and based on that they have come to conclusion to such method of valuation adopted by the investigation agency is illegal and unsustainable. 20. The Learned Counsel also drew our attention to the copies of the invoices produced by them and submits that the value of the goods sold by the appellant and invoices were available on record. Further, submits that during investigation it is clearly found that the goods which were cleared earlier were cleared as bulk and there is no MRP affixed on the commodities as required under the provision of law as claim by the respondent. The absence of any allegation that the goods were sold by affixing MRP, allegations made against the appellant is illegal and unsustainable. Moreover, even after selling the product to various customers over a period of time without affixing MRP, the Authority entrusted to ensure compliance of Legal Metrology (Pack....