TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 186
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....962 on 'parts of forklift' imported between 25th June 2014 and 30th June 2017 through Air Cargo Complex (ACC), Mumbai and Rs. 7,75,290 on consignments imported through Jawaharlal Nehru Customs House (JNCH), Nhava Sheva between 25th August 2014 and 30th June 2017. The differential duty was determined by re-appraisal of the value for the purpose of additional duties of customs under section 3(1) of Customs Tariff Act, 1975 in accordance with section 3(2) of Customs Tariff Act, 1975, specifying the manner in which the goods were to be valued in the special circumstances of excise duty on like articles manufactured or produced in India being leviable to duty at the appropriate rate of excise duty on the value of 'retail sale price (RSP)' with abatement to the extent permitted in accordance with section 4A of Central Excise Act, 1944. The impugned order re-determined the value thereof to be Rs. 38,06,21,670 and Rs. 1,33,06,443 on the imports effected through respective ports of entry. In doing so, the computation relied upon rule 6 of Central Excise Valuation (Determination of Retail Sale Price of Excisable Goods) Rules, 2008. The other appellants challenge the penalties imposed on them....
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....dity', there is no packing involved in sale and distribution after clearance for home consumption and any packing or wrapping present at the time of import is solely for protection during transportation and storage. It was pointed out that, in such circumstances, there was no need for declaration of any particular essential for enabling a consumer to make a rationale decision on purchase let alone of price and, more so, in circumstances of sale contracted by the appellant. He relied upon the decision of the Tribunal in Commissioner of Customs (I), Nhava Sheva v. King Kaveri Trading Co [2019 (370) ELT 1049 (Tri.-Mumbai)] and in Fine Equipments (India) Pvt Ltd v. Principal Commissioner of Customs, Nhava Sheva in final order [no. A/87592-87593/2023 dated 12th December 2023] disposing off appeal [customs appeal no. 86734 of 2017] against order [order-in-original no. 181/2016-17/CC/NS-I/JNCH dated 02nd March 2017] of Commissioner of Customs, Nhava Sheva-I. It was further contended that, in view of the specific and peculiar market to which they cater, the activity did not amount to retail sale but is 'after sale service' which is out of the purview of Legal Metrology Act, 2009. Reliance ....
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....his provision in itself may not suffice revenue to direct the appellant to discharge the service tax liability as service receiver, on the face of the fact that notification under Section 68(2) of the Finance Act, 1994, was issued by the Central Government only on 31-12-2004. If the contention of the learned SDR is to be accepted, then there was no necessity for the Government to issue Notification No. 36/2004-S.T. notifying the service receiver from non-resident having no office, to pay Service tax, as receiver. By issuing the said Notification, Central Government intended to tax the service receiver from non-resident, 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 princi....
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....ture as stipulated in section 3(1) of Customs Tariff Act, 1975. Recourse to rules of valuation framed under the authority of section 14 of Customs Act, 1962 was, thus, precluded and the sanctity of 'declared' 'retail selling price' protected from being re-determined. 8. As re-labelling of the specified goods would amount to manufacture after import, it is not that recourse was unavailable to remedy any breach of parity. The adoption of 'retail selling price' of other re-sellers and, that too, while the impugned goods were yet to be cleared for home consumption on the presumption that the importer intended to enhance the 'retail selling price' at the point of sale appears to be a mis-direction on the part of the original authority and the confirmation thereof, by the first appellate authority, bears the same taint as to warrant the setting aside of the impugned order. 5. Learned Authorized Representative submitted that the claim of the appellant was inadmissible inasmuch as the impugned order has categorically found the goods to be covered by the mandate for levy authorized by section 3(1) of Customs Tariff Act, 1975 and fulfilling the intent of proviso in section 3(2) of Custo....
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....ia and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article: xxxxx Explanation--In this sub-section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. (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....
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....tself is a marriage of convenience that, from rigour and robustness of oversight envisaged in the latter till the last point of retail, offers price inoculated against the infection of misdeclaration as value for assessment to duties of central excise. 7. This dichotomy was not always so. The proviso in section 3(2) of Customs Tariff Act, 1975 supra, carving out exception from uniform valuation scheme prevailing till then for all imported articles, was incorporated by Finance Act, 2001 [Finance Act, 2001 (Act 14 of 2001), section 116 with effect from 1st March 2001] and to keep up with the treatment accorded to domestic manufacture for levy of duties under Central Excise Act, 1944 with incorporation of section 4A [Finance Act, 1997 (Act 26 of 1997), section 82 with effect from 14th May 1997] therein. Under the authority of this latter provision, notifications enumerating the articles carved out for segregation from standard valuation mechanism and abatement from 'retail sale price (RSP)' came to be issued and which, in turn, was, by the construct supra in the proviso, to be deployed for assessment of imported goods to additional duty of customs. The impugned proceedings were premi....
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....r not paid at the time of assessment under section 17 and clearance under section 47 of Customs Act, 1962 owing to which the 'proper officer' resumes authority that vested then in the assessing authority to re-determine rate of duty and value. Therefore, the scope of adjudication in the present dispute was circumscribed by the constraints on assessment binding the assessing officer. 8. It is evident from a harmonious reading of section 3(1) of Customs Tariff Act, 1975, and section 3(2) therein, that additional duty of customs 'equal to the excise duty for the time being leviable on a like article if produced or manufactured in India' was not intended to be the amount of duty to be discharged by a domestic manufacturer on clearance of like goods but only for applicable rate of duty of excise to be charged on the value of the imported goods; thus, till section 3(2) of Customs Tariff Act, 1975 was varied in the manner supra, there was no scope for dispute over valuation for assessment of 'additional duty of customs' except in consequence of controversy attending on assessment of 'basic customs duty (BCD)' leviable on imported goods. The rationale law relating to legal metrology, legi....
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....l delineation as to permit similar grafting and that it was more attributable to legislative design of empowerment not traversing beyond ascertainment of conformity of declared 'retail selling price (RSP)' with such particular printed on 'pre-packaged' imported goods. The stipulations in legal metrology statute does not bind seller in international transaction. Even if imported goods are not in compliance thereof, it devolves on importer to make good the deficiency before clearance for home consumption in accordance with section 47 of Customs Act, 1962. The importer, thus, makes a declaration of 'retail selling price (RSP)' either from having instructed seller to print such on the package or from having had to undertake such printing after arrival; either way, it is not externally determined and occurs well before any transaction of further sale. Such 'price' lacks the rigour of an independent 'transaction value' contemplated in section 14 of Customs Act, 1962 both by provenance as well as by absence of benchmark and want of surrogate. When legislative sanction is for self-assessment to be effected against self-declaration with no benchmark for ascertainment until after clearance a....
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....The appellant contends that the impugned goods, viz. parts of forklift trucks or other cargo moving equipment, are neither 'pre-packaged' nor meant for 'sale, distribution or delivery' to customers. The adjudicating authority held that the importer was obliged to declare 'retail sale price (RSP)' as marked on the package to determine levy of additional duty of customs which, in the factual matrix of claim of the appellant, did not exist on the commodities; at best and in the circumstances of imported goods having been consumed, no purpose is served by fastening 'retail sale price (RSP)', such as it is, on the goods after consumption and 'transaction value' adjusted for 'basic customs duty (BCD)' may be deemed to be the 'retail sale price (RSP)' on which duty has already been discharged. No evidence of impugned goods having been sold at the price adopted for computation of duty in the impugned show cause notice is available for affirmation of differential duty as being in accordance with law and procedure. 13. It is noted that applicability of chapter 2 of the Legal Metrology (Packaged Commodities) Rules, 2011 is limited to 'packages intended for retail sale' and it has not bee....
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....tion notification but promulgating notification issued as statutory instruments. The notification enumerating the goods that are to be covered by section 4A of Central Excise Act, 1944 is not an exemption notification. The notification providing for abatement, considering the objective of Central Excise Act, 1944, is also one issued under the authority of section 4A of Central Excise Act, 1944. These are by no means exemption notifications and the foundation laid by the adjudicating authority on such premise erase the consequent findings. Likewise, reliance placed by the adjudicating authority on interpretation of 'manufacture' in Central Excise Act, 1944 for determination that consumers of the appellant are not industrial consumers is not relevant for the purpose of section 3(2) of Customs Tariff Act, 1975. 17. All of these is academic in the light of lack of machinery provision for re-determination of 'retail sale price (RSP)' that impedes re-visit of assessment of additional duties of customs. Such negation of authority is not of prejudice, as pointed out supra, to the interests of the exchequer or to the purpose of law. No case has been made out that the enforcement authority ....