TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1139
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....April 2010 and November 2011 from out of 68 consignments at both ports valued at Rs. 10,05,82,586 and at Rs. 15,70,05,614 respectively that were, in addition, held to be liable to confiscation under section 111 (d) and section 111 (m) of Customs Act, 1962 following which penalties were imposed on the importer under section 114A of Customs Act, 1962 in addition to section 114AA of Customs Act, 1962. In addition, import effected against a single bill of entry at Chennai, and seized thereto during investigation, was also confiscated under section 111(d) and section 111 (m) of Customs Act, 1962. The individual appellant is aggrieved by the fastening of penalties under section 112 of Customs Act, 1962 and section 114AA of Customs Act, 1962. 2. The proceedings under section 28, for recovery of differential duties of customs, and under section 124, proposing confiscation and imposition of penalties under section 112, section 114A and section 114AA of Customs Act, 1962, had its genesis in the discharge of liability of 'additional duty of customs' under section 3(1) of Customs Tariff Act, 1975 at the appropriate rate but is limited to value, as set out in section 3(2) of Customs Tariff A....
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....ions of the noticee are manifest in their non-declaration but also in their manner of import. If the noticee's were of the opinion that the goods do not attract provisions of LM PC Rules and consequently Section 4A assessment based on RSP, there was no requirement to make such declarations on the packages, even the outer cartons. The goods are shelf-ready but for some extraneous value addition. In such a situation where the goods are not in the nature of semi-finished goods, it is all the more necessary that the noticee makes their declaration to ensure that the officers see a case in stead of sweeping the most important matter under the carpet till the department intervenes. I find that it is a clear case intentional mis declaration and suppression in not declaring RSP for assessment under Section 4A of CEA read with proviso to Section 3(2) of CTA, 1975. 56. In view of the above discussions, I hold that the 'automobile batteries' imported by the noticee are liable for Section 4A assessment at the time of import and accordingly RSP was required to be declared by the noticee while filing the Bills of Entry and also on the individual packages. The differential du....
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....take recourse to section 4A of Central Excise Act, 1944 in undertaking assessment under section 17 of Customs Act, 1962 transubstantiated with like scope and extent for post-clearance recovery of duties under section 28 of Customs Act, 1962. 4. The adjudicating authority has placed heavy emphasis on mandate for levying duties in accordance with section 4A of Central Excise Act, 1944 and, probably, in the belief that the intent of section 3(1) of Customs Tariff Act, 1975 is to countervail the duties that are saddled on goods manufactured in India; it, therefore, behoves us to touch upon the scheme of levy of duties on imported goods and the limitations thereof under law and procedure. The primary levy to be fastened under Customs Act, 1962, i.e., basic customs duty (BCD)', is empowered by section 12 therein and is effected by reference to rates set out in First Schedule to Customs Tariff Act, 1975 applied, if denoted as ad valorem, to value determined in accordance with section 14 of Customs Act, 1962 for assessment on import under section 17 of Customs Act, 1962; any shortfall, upon re-determination of either or both by recourse to rate and value, is recoverable under the author....
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....l duties of customs' collected on such goods to move away from the valuation permitted in, and authorized by, Customs Act, 1962 to the valuation legislated for levy of duties of central excise through incorporation of 'Provided that in case of an article imported into India,- (a) in relation to which it is required, under the provisions of the Legal Metrology Act, 2009 (1 of 2010)] or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such article; and (b) where the like article produced or manufactured in India, or in case where such like article is not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is- (i) the goods specified by notification in the Official Gazette under subsection (1) of section 4A of the Central Excise Act, 1944 (1 of 1944), 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, by notification in the Official Gazette, allow in....
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.... would be to entrust oversight of commerce to officialdom beyond scope of their authority and competence. 7. There is no requirement, under customs law or excise law that are hinged on ascertaining the measure for taxation, for price to be printed on goods, packaged, and valuation system of both merely ride on the back of legal metrology law that is hinged on printing, among others, the price on the product, packaged, without concern for the measure. It is quite possible that the imported products may, for justifiable reason, be lacking in imprint of details therein or, from lack of wherewithal despite mandate of legal metrology law, be found to be deficient thereto. The latter possibility is easily remedied by permitting the importer to carry out the necessary alterations on the package as prescribed while yet to complete the process culminating in clearance for home consumption. This is a voluntary act on the part of the importer for compliance with legal metrology law that is submitted to. It is quite possible that importer may prefer to defer compliance even as ambit of legal metrology law over the imported products, packaged, is acknowledged; such acknowledgement is demonst....
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.... the commodity is otherwise accessible to evaluation by five senses of retail consumers. The primacy accorded to the least significant for consumer protection, viz. price, by central excise authorities prompts the genesis of disputes which culminate in adjudications undertaken without examining the context and purpose of the original legislation as also the extent to which the 'trailer' is, legally speaking, permitted to steer the motor vehicle. Our perspective of the issue must necessarily be conditioned by the lack of any consequence turning on motivated recourse to lower duty that is entitled to neutralization especially when imported for self-use or further processing and the feasibility of avoidance of affixing 'maximum retail price (MRP)' in the domestic channel of distribution; the costs of failure to are just too high to be overlooked by reasonable commercial standards. Moreover, such suggestion of avoidance of adhering to stipulations may only be postulated upon suspicion of poor enforcement of legal metrology law which is an assumption without basis. The scheme of 'retail sale price (RSP)' valuation for determining duties of central excise, as also additional duties of cu....
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....aw for any reason whatsoever. He further submitted that, even for duties of central excise, authority for re-visit of assessment was not legislated till much later and that a Larger Bench of the Tribunal has held, even so, in Ocean Ceramics Ltd v. Commissioner of Central Excise, Rajkot [2024 (1) TMI 1280 - CESTAT AHMEDABAD - LB] that, absent specific machinery provision through statutory instrument [notification no. 13/2008-CE (NT) dated 1st March 2008] till March 2008, the enablement [Finance Act, 2003 (Act 32 of 2003), section 137 with effect from 14th May 2003] in section 4A of Central Excise Act, 1944 did not suffice. 11. Learned Authorized Representative pointed out that the live consignment with all the markings prescribed by Legal Metrology (Packaged Commodity) Rules, 2011 imprinted thereon brought these within the ambit of special valuation with reference to 'retail sale price (RSP)' and that, armed with information that other consignments impugned in the proceedings were also sourced from the same suppliers, the adjudicating authority had concluded, and rightly so, that all imports could not but have been similarly marked. 12. It is mystifying that, tied to a statute....
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....A in Central Excise Act, 1944 in May 1977 came up for scrutiny and it was held that '8. The onus for the affixing the 'maximum retail price', the sole prescription among the many that is pertinent to Section 4A of Central Excise Act, 1944, rests not with the manufacturer but with the one who pre-packages the goods; to the extent that the two converge, the manufacturer is saddled with the responsibility to do so. The peculiarity of this consumer protection law is that an offence against this statute, if any, becomes visible only at the shelf of the retailer but the offence is attributed to the manufacturer or the entity that has packed the goods or altered the 'maximum retail price.' Critical to the affixing of 'maximum retail price' and, where the manufacturer is concerned, assessment under Section 4A of Central Excise Act, 1944, therefore, is not the pre-packing itself but the intent to cater to the retail customer. Consequently, the implicit exclusion, viz. 'The provisions of this Chapter shall apply to packages intended for retail sale and the expression 'package', wherever it occurs in this Chapter shall be construed accordingly.' in Rule 3 of Chapter....
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....y provision; the parallel, and implied, empowerment under Central Excise Act, 1944 for goods cleared after 1st March 2008 will not be available for customs purposes. Even before such 'retail sale price (RSP)' valuation for assessment to duties leviable under section 3(1) of Customs Tariff Act, 1975, there was no scope for revision of value, deployed in terms of section 3(2) of Customs Tariff Act, 1975 and based on section 14 of Customs Act, 1964, except in relation to, and also for, 'basic customs duty (BCD)' being so altered too. The incorporated proviso in section 3(2) of Customs Tariff Act, 1962, being an unrelated provisioning, cannot draw upon the authority by which value for 'basic customs duty (BCD)' could be revised. 16. Indeed, as we have noted supra, the substantive distinction between clearance effected by a manufacturer in the country, who, in the course of transfer of goods to another domestically, is subject to assessment of duties and effectively disowns responsibility for declaration on 'pre-packaged commodity' thereupon with easy amenability to fasten responsibility for subsequent change which is tantamount to 'manufacture' and liability to duty, and importer, w....