TaxTMI 
TaxTMI 
2024 (10) TMI 1459
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....4A of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002; imposed a fine in lieu of confiscation of Rs.13,000/- in terms of Section 125 of the Customs Act, 1962, as made applicable to Central Excise Act, 1944; released 4297 boxes of said tiles seized vide very same panchnama dtd. 11/02/2018 unconditionally; imposed penalty of Rs.15,000/- under Rule 25 of Central Excise Rules, 2002 on M/s. Shah Tiles Ltd., Kadi and imposed penalty of Rs.15,000/- under Rule 26 of Central Excise Rules, 2002 on Mr. R. Kumar, Managing Partner of M/s. Aravind Ceramic. 1.2. On perusing the appeal memorandum filed by M/s. Shah Tiles Ltd., Kadi, it is found that since the goods belonged to them, they are aggrieved by confiscation of tiles. Therefore in their appeal, they have challenged the impugned order insofar as it pertains to upholding of confiscation of 693 boxes of tiles valued at Rs.1,57,900/- as also challenged the same insofar as it pertains to upholding imposition of fine of Rs.13,000/-. In the very same appeal, they have also challenged very impugned order insofar as it has upheld imposition of a penalty of Rs.15,000/- under Rule 25 of Central Excise Rules, 2002 being impo....
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....ramic tiles which were manufactured and cleared from the factory of the manufacturer prior to 28/02/2008. If no, obviously the same could not be seized much less confiscated and therefore, no fine in lieu of confiscation could be imposed and also no penalty could be imposed on either the manufacturer or on the dealer. Thus, in that circumstances, appeals would be required to allowed. 1.8. It is submitted that the provisions of Section 4A underwent a change for collection of the duty in the case where MRP which has been declared is considered as incorrect. The changed provision of sub- section (4) of Section 4A of the Act, provides for enactment of rule to determine revised MRP/RSP. Such rules were brought into statute by Notification No. 13/2008-C.E. (Ν.Τ.) and was made applicable from 1-3-2008. When there was no provision of re-determining the MRP/RSP, even if it is considered that there was under-valuation, determination of the MRP/RSP should have been done only as per the provisions of the sub-section (4) of Section 4A of the Act which can be brought into statute from 01/03/2008. 1.9. It is submitted that Hon'ble Tribunal in the case of Millennium Appliances India L....
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....turers of tiles to that of the appellant herein. Thus, number of identical matters were a matter of consideration by this Tribunal. The judgment of Hon'ble Tribunal at Ahmedabad in the case of ACME CERAMICS Versus COMMISSIONER OF CENTRAL EXCISE, RAJKOT reported at 2014 (304) E.L.T. 542 (Tri. - Ahmd.) is on this aspect. On perusing the same it can be observed that the issue is already decided by the Hon'ble Tribunal. Relevant part of the said judgment is reproduced below for the same of kind perusal: 14. At this juncture, we would like to refer to the submissions made by the ld. Special Counsel for the Revenue that in the case of M/s. Schneider Electrical India Pvt. Ltd. (supra), Hon'ble Member (Technical) has differed with the views of Hon'ble Member (Judicial) who has relied upon all these three case laws. In our considered view, the deferring Member has incorrectly applied the law in the case of M/s. Mahim Patram Pvt. Ltd. to take a different view from the views already existing. On perusal of the said decision of Apex Court in the case of M/s. Mahim Patram Pvt. Ltd., we find that the Apex Court was dealing with a dispute wherein in the absence of rules having b....
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....en incorporated by reference under Central enactment. In our view, there being no contrary judgment to the views expressed by the 3 decisions of the Co-ordinate Benches of the Tribunal on this issue, even assuming that there was misdeclaration of RSP, period prior to 1-3-2008 the RSP cannot be re-determined by the Revenue in any manner. 15. We also find that in the cases in hand, on factual matrix is in of the assessee manufacturer of tiles. The statements recorded of the individuals of manufacturer of the tiles, specifically state that of Rs. 100/- by them from the factory premises, on each box which were they were declaring a RSP cleared the it is also stated that said clearances are effected on ex-factory basis and of such boxes are in the hands of the buyers, If it transportation of is the case of the Revenue that RSP was later on changed and sold to the ultimate consumer at higher price, Department it was for the first ascertain who has changed the said MRP. In our view, the person who has altered the RSP on the goods is the person who can be held as a RSP; the definition manufacturer on of manufacturer in alteration of Section 2(f) of the Act (hereinbefore reproduced) speci....
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..... 16. We also find the statements of the authorized persons of the manufacturers have stated that they have cleared the glazed/vitrified tiles based upon a RSP declared, which was in their opinion a correct price is not controverted by leading any evidence that the declared price was not the correct one was known to the manufacturer. We find that the contention of ld. Counsel that the belief of manufacturer has always considered that declared RSP was correct, by the statements of is supported by to statements of individuals who were either partners/proprietors manufacturer, We find strong force of appellant the contentions raised by Counsel for the appellant that the manufacturers may be unaware that the RSP on the box was obliterated or altered after the removal from their place of manufacturer, as none of the dealers have stated that the RSPs were changed on direction of manufacturer; or manufacturer was instrumental to order such a charge. In the absence of any contrary evidence, we have to take an adverse inference against the Revenue. 17. On this factual matrix also, we are of the view that Revenue case is unsustainable for the demand of duty from the appellants. 18. As ....
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....that for the same reasons, no penalty on manufacturer of tiles or the dealer is imposable. Since the period in dispute in the present case is prior to 01/03/2008, the appeal may be allowed and that impugned order may be quashed and set aside. 1.12. It was further submitted that vide the aforesaid judgment, being Final Order Nos. A/11683-11693/2013-WZB/AHD, dated 12-12-2013 in Appeal Nos. E/46-47, 103-104, 159-162/2012 & E/12074-12075/2013 and E/1153/2011, Nine (9) appeals were decided. Further this judgment is followed by the Hon'ble Tribunal in SUZUKI CERAMICS Versus COMMISSIONER OF C. EX. & S.T., RAJKOT reported at 2016 (334) E.L.T. 169 (Tri. Ahmd.). Even in this case, vide Final Order Nos. A/11906-11931/2014-WZE/AHD, dated 24-9- 2014, in Application Nos. E/MA(Extn) 15456-15457/2014, E/MA(Extn)/14040-14041/2014, E/ MA(Extn)/14174-14176/2014 and E/MA(Extn/14163-14164/2014 in Appeal Nos. E/448-449/2012, E/10150/2013, E/10155/2013, E/10352-10353/2013, E/10684- 10685/2013, E/12009-12010/2013, E/12892-12894/2013, E/10343- 10344/2013, E/10448-10449/2013, E/13198-13200/2013, E/13687- 13688/ 2013, E/10595-10596/2013 and E/12479-12480/2013 read Was submitted with corrigendum dtd. 13/....
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....hilst holding that since the same is not stayed by the Apex Court in Departments appeal, the same needs to be followed. Attention was also invited to the judgment of coordinate bench at Kolkata in the case of Commissioner of C. Ex. Jamshedpur V/s. ICI India Ltd. reported at 2003 (156) ELT 426 (Tri.-Kolkata) where in it was particularly observed that Tribunal's decision on a particular issue required to be followed till the same set aside by Higher Appellate Forum Mere filing of appeal in Supreme Court and admission therein not material when no stay of operation granted by Supreme Court. Your kind attention is also invited to the Judgment of Hon'ble Supreme Court in the matter of Union of India V/s. Kamlakshi Finance Corporation Ltd. reported at 1991 (55) E.L.T. 433 (S.C.). Therefore also it is submitted that the aforesaid judgments may kindly be followed since as per the best of the knowledge of the appellant herein, no stay is granted against the operations of any of the said judgments by the Hon'ble Supreme Court so far. Therefore, the appeal filed by the appellant herein may be allowed. 1.15. It was therefore prayed that the appeals filed by the appellant may kindly....