Custom, Excise & Service Tax Tribunal
) Bluemax Impex (India) Private Ltd vs Commissioner Of Customs ... on 18 December, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal Nos.C/41287/2014, C/41290/2014
[Arising out of Order-in-Original No.22851/2013 dt. 29.11.2013 passed by the Commissioner of Customs (Seaport-Import), Chennai read with corrigendum dt. 21.1.2014 and Corrigendum dt. 14.2.2014]
1) Bluemax Impex (India) Private Ltd.
2) Raj Kumar Harwani, M.D. Appellant
Versus
Commissioner of Customs (Seaport-Import),
Chennai Respondent
Appearance:
Shri N. Viswanathan, Advocate For the Appellant Ms. Indira Sisupal, AC (AR) For the Respondent CORAM : Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member Date of Hearing/Decision : 18.12.2015 FINAL ORDER No.41788-41789/2014 Per R. Periasami
Both the appeals are arising out of a common Order-in-original dt. 29.11.2013 passed by Commissioner of Customs, (Seaport-Import) and therefore both are taken up together for disposal.
2. Appellants M/s.Bluemax Impex (India) Pvt. Ltd. imported assorted models of cellular phones through Chennai Seaport under three live Bills of Entry dt. 18.11.2011, 19.11.2011 and 22.11.2011. The SIIB of Custom House, Chennai detained the goods based on the intelligence that the goods were grossly undervalued and also on the ground of misdeclaration of Retail Sale Price (R.S.P) in order to avoid payment of actual Customs duty. The appellant also subsequently filed another five Bills of Entry [Bs/E dt. 18.8.2011, 19.11.2011, 22.11.2011, 29.11.2011, and dt. 29.112011] for clearance of various models of mobile phones and the goods were seized. The officers conducted search of the appellants premises at Hyderabad and recovered documents and also seized 2092 nos. of cell phones of Kechao brand contained in 44 boxes said to have been cleared from Chennai Custom House under B/E No.5176594 dt. 14.11.2011. On examination of the goods, it was found that certain goods were misdeclared and in two Bills of Entry there were excess quantity and also undeclared quantity and also shortage of quantity. On further examination, it was found that certain cell phones were not declared by the appellant in the invoices. Statement was recorded from Mr. Raj Kumar Harwani, Managing Director of appellant company, and after completing detailed investigation, show cause notice dt. 4.4.2012 was issued to the appellant proposing to reject the Retail Sale Price (R.S.P) in all the live consignments and 6-past consignments and also proposing to redetermine the value at higher R.S.P based on contemporaneous R.S.P of identical other similar models. SCN also proposed to confiscate the seized excess goods and undeclared goods and also proposed to impose penalty on the appellant company under Section 112 (a) and Section 114A and penalty on the co-noticee Shri Raj Kumar Harwani under Section 112 (a) of the Customs Act.
3. The details of Bills of Entry are listed below :-
S.No. B.E.No. AV in Rs.
Decl.RSP in` Decl.
Duty Status of B/E
1. 5232333/ 18.11.2011 2,41,67,110/-
1400 to 2300 5,11,900 Live
2. 5235745/ 19.11.2011 2,27,98,138/-
685 to 1167 3,21,185
-do-
3. 5256566/ 22.11.2011 2,06,16,882/-
1300 to 1650 4,72,962
-do-
4. 5331333/ 29.11.2011 2,07,98,498/-
830 to 1469 2,95,559
-do-
5. 5331392/ 29.11.2011 2,22,55,869/-
730 to 1469 3,19,290
-do-
6. 5860500/ 30.1.2012 2,30,44,994/-
1025 to 2490 4,61,239
-do-
7. 5867352/ 31.1.2012 2,29,89,616/-
1395 to 1650 4,53,587
-do-
8. 5867380/ 31.1.2012 2,35,34,582/-
1060 to 2550 4,59,564
-do-
9. 4398392/ 18.8.2011 2,10,16,094/-
1200 to 1600 4,99,581 Past
10. 4708505/ 21.09.2011 2,08,56,550/-
1250 to 1950 4,67,914
-do-
11. 4877566/ 10.10.2011 2,35,67,343/-
1060 to 1850 4,68,289
-do-
12. 5072359/ 1.11.2011 2,24,87,333/-
1550 to 2100 4,48,867
-do-
13. 5140761/ 9.11.2011 2,28,64,593/-
1060 to 1860 4,96,067
-do-
14. 5176594/ 14.11.2011 2,16,81,695/-
1395 to 2100 4,58,896
-do-
4. The adjudicating authority after following the principles of natural justice, in his order (43 pages) held as under :-
(i) She rejected the R.S.P Bill of Entrywise of different models of mobile phones of various brands GLX, FORME, CARLVO,MuPHONE and KECHAO and determined the R.S.P. under Rule 4 of the RSP Rules read with Section 3 (2) of Customs Tariff Act at the highest of the contemporaneous Retail Sales Price of identical and/or similar models declared and cleared during the relevant period as per NIDB Data in respect of live B/E and past clearances as detailed in Annexure-III to the adjudication order.
(ii) She confiscated the declared goods viz. 1,76,930 nos. of mobile phones, valued at Rs.17,22,17,186/-in respect of eight live bills of entry except the undeclared and excess goods under B/E NO.5235745/19.11.2011 & 5331392/29.11.2011.
(iii) She confiscated the goods valued at Rs.13,24,73,608/- in respect of past clearances covered under the respective six Bills of Entry.
(iv) She demanded differential duties on mobiles phones of different models that were recovered as undeclared goods and found excess in quantity of the declared goods in respective Bills of Entry and confiscated the said goods. However he allowed redemption on payment of fine of Rs.3 lakhs and Rs.2 lakhs in respect of those goods.
(v) She also confirmed the differential duty of Rs.39,49,795/- on the imports covered under Eight Bills of Entry and Rs.31,19,432/-on the past clearances covered under Six Bills of Entry.
(vi) She ordered for appropriation of Rs.32,20,377/- deposited volunatarily by appellant as differential duty towards the Customs duty liabilities.
(vii) vide Corrigendum dt. 21.1.2014, she imposed Redemption fine of Rs.30,00,000/- and Rs.30,000/- under Section 125 (1) of the Customs Act.
(viii) She also ordered for enforcement of Bank Guarantee of Rs.22 lakhs (vide corrigendum dt. 21.1.14) towards duty and adjudication liabilities.
(ix) She imposed penalty of Rs.70,69,227/- in the order which was modified as Rs.74,95,940/- vide corrigendum dt. 31.1.2014 along with interest on appellant M/s.Bluemax Impex (India) Ltd. under Section 114A of the Customs Act.
(x) She imposed penalty of Rs.7,00,000/- on Shri Raj Kumar Harwani, Managing Director of appellant company under Section 112 (a) of the Customs Act, 1962.
Hence the present appeals. This matter was heard on 30.11.2015, 17.12.2015 and today.
5. Learned Advocate appearing for the appellants reiterated the grounds of appeals and submits that they are regular importer of Chinese models of various brands of mobile phones which are mainly sold to rural markets of Andhra Pradesh. The department has accepted their R.S.P. They have also cleared mobile phones through Hyderabad Customs in the year 2011. He drew our attention to pages 170 to 183 of the appeal where all the Bills of Entry were assessed and R.S.P between Rs.1050 and Rs.1650 was accepted by Customs and during September 2011 in one Bill of Entry at page 188 to 207, the RSP was enhanced to Rs.2500/-. He drew our attention to page 266 of the paper book enclosed worksheet showing import price, after allowing discounts, RSPs have been computed.
5.1 He submits that in the present case the goods were detained and seized on the ground of misdeclaration of R.S.P only based on the Hyderabad Customs report. He referred to mahazar dt. 26.11.2011 at page 158 & 159 and submits their goods at Hyderabad godown were seized and also statement of Shri Rajkumar Harwani dt. 8.12.2011 at page 160. He also drew our attention to letter dt.3.1.2012 at page 378 where the appellant Shri Rajkumar Harwani has retracted his statement. He also relied contemporaneous imports of cell phones cleared through Delhi Customs annexed at page 275 to 282 where the RSP was declared at Rs.1050 to Rs.1500/- and the same was accepted by the Customs and also allowed clearance of another Bill of entry cleared at Hyderabad and RSP of Rs.1799 of their own brand of same model was allowed at RSP 1799 (page 291 to 296) where the importer M/s.Celikon Impex Pvt. Ltd. who cleared their own brand which are high end models and the RSP was accepted and cleared.
5.2 He submits that the department has only shown NIDB data of RSP of Rs.3000/- but no Bill of Entry was produced and also relied market enquiry and estimate of sale price of cell phones sold and the same was relied by the department (page 16 to 169) which is not the sale price but it is only an estimate. He drew our attention to para 30.04, 30.05 and para-33 of OIO and submits that the adjudicating authority has invoked Rule 4 (b) and 5 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 [RSP Rules]. They are registered with both Sales Tax and Income Tax authorities and discharging VAT on their sales turnover and filing IT returns. They submitted 51 retail sales invoices of their own products to the department indicating the RSP but the same was not considered by the adjudicating authority. He submits that in compliance of Section 3 (2) of Customs Tariff Act they have duly declared the R.S.P and it was never sold at higher price at retail sale than the R.S.P. declared by them. These are sold at lesser R.S.P. whereas the adjudicating authority has determined the R.S.P of Rs.3000/- and above to all the products based on enhanced RSP the CVD was demanded. The counsel also submits that basic customs duty is NIL. The adjudicating authority has rejected the contemporaneous evidence of RSP cleared through Delhi and Hyderabad on the ground that these cannot be comparable as it is beyond one month period and he submits that on the same logic, the departments relying for R.S.P of Rs.3000 based on the NIDB data also not comparable. As per Rule 4 (b) (1) of R.S.P.Rules, 2008 if the department chose to redetermine the RSP of the goods the nearest RSP of goods should have been manufactured and removed within a period of one month, before or after removal of such goods. He countered the departments contention in para 32 and 32.3 of OIO and submits that no verification of their retail price has been done by the department to establish whether the retail price is correct or otherwise. He also submits that appellants have not altered the M.R.P or relaballed after clearance from Customs as these goods were physically sold to rural people at Andhra Pradesh. He relied the Supreme Court judgement in the case of I.T.C. Ltd Vs CCE New Delhi - 2004 (174) ELT 433 (SC) where the Supreme Court has clearly held that any infringement of M.R.P attracts Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the declaration given by the manufacturer was in terms of SWM Rules read with Section 4A and the excise officer cannot question that R.S.P and its correctness involved. He referred to para-47 of the Supreme Court order. He also relied the following citations :-
(1) CC Cochin Vs Yem Yes & Co.
2007 (210) ELT 148 (Tri.-Bang.) [Para-4]
(2) Planet Sports Pvt.Ltd. Vs CC New Delhi
2005 (180) ELT 206 ( Tri.-Delhi) [Para-5]
(3) NITCO Tiles Ltd. Vs CC
2015 (325) ELT A202
5.3 He also submits that department has detained two containers which are still in the custody of Customs whereas they have allowed clearance of 5 containers as per the Honble Madras High Court orders dt. 24.8.2012 and they have deposited Rs.32 lakhs and the same was appropriated. They have also paid another Rs.13,86,985/- and the same was not appropriated and also the department has encashed their bank guarantee of Rs.22 lakhs. He submits that there is no specific charges made against the second appellant. He drew our attention to show cause notice dt page 105 and at page 49 of OIO. Hence no penalty is imposable on the second appellant. The goods are not liable for confiscation. Regarding goods which were found in excess of the declared, On imposition of penalty, he relied the following case law :-
(i) VED Prakash Wadhwani Vs CC Ahmedabad 2009 (2330 ETL 356 (Tri.-Ahmd.)
(ii) Madras Petrochem Ltd. Vs CC Chennai 2007 (280) ELT 712 (Tri.-Che.) He submits that their live consignments are still held up in Customs and prays that the impugned order may be set aside and also he submits that they are ready to provide all necessary documents in support of R.S.P. before the adjudicating authority.
6. On the other hand, Ld.A.R for Revenue reiterated the OIO and relied para-8 of the OIO where the statement of Shri Rajkumar Harwani, Managing Director of appellant company has been recorded where he has admitted in his statement that he is agreeing to revise the R.S.P to Rs.3000/- and also paid the differential duty. She drew our attention to para 32.1 wherein the adjudicating authority countered the worksheet submitted by the appellant. The department has enhanced the R.S.P. based on the contemporaneous Bills of Entry as per NIDB data which is enclosed as Annexure 3 (Pages 125 to 146). She drew our attention to para-20 to submit that their own identical goods were cleared to Hyderabad at R.S.P of Rs.2500/- which was not disputed by the appellant. She also relied market enquiry document at page 166 of M/s.GFive. She further submits that it is not only the question of R.S.P but also appellant misdeclared the goods, quantity and also description where some of the goods were found excess and not declared and misdeclared which was not disputed by the appellant. She also relied para-29 of the OIO on the confession of appellant. She relied Planet Sports Pvt.Ltd. (supra).
7. The advocate in his rejoinder countered the arguments of A.R. He drew our attention to mahazar at page 158. When Customs searched the appellants premises where the cardboard boxes containing mobiles phones imported through Chennai Seaport vide Bill of Entry No.5176594 dt. 14.11.2011 were already affixed with correct MRP/R.S.P stickers. He submits that RSP/MRP is exclusive to a person to sales at retail and there is no contemporaneous sales in R.S.P. He also submits that adjudicating authority in his findings held at para-33 that he is not concerned as to what should be the importers price for selling the goods and he is concerned with only correct RSP. Counsel submits that RSP for each product is specific and related to that product as per the WMP Act. There cannot be any contemporaneous price for determination of R.S.P. Rule (4) of RSP Rules provides that Department can redetermine the R.S.P if the RSP is not declared, altered or misdeclared the RSP as per the guidelines provided in the said Rules and nowhere it is stated on adopting contemporaneous R.S.P. of other goods. He submits that RSP is the persons right who sells such goods and submits that since the department failed to determine the RSP of their goods but merely taken a contemporaneous RSP the enhancement of RSP is liable to be set aside and matter is to be remanded to the adjudicating authority to redetermine the RSP as per statute and he submits that they are ready to deposit Rs.8 lakhs for release of the two containers as undertaken by them vide their letter dt. 10.3.2014 at page 378 towards liabilities pending determination.
8. We have carefully considered the submissions of both sides and examined the records. The short issue relates to demanding of CVD based on the Retail Sale Price declared by the appellants on the imported mobile phones of various brands. There is no dispute on the classification or description of the goods except in respect two Bills of Entry where the goods were undeclared, excess quantity were noticed. We find that the Basic Customs Duty (BCD) is exempted on cellular phones only the CVD is chargeable as per Central Excise Notification No.20/2011 . Since the goods are packaged commodity, in terms of Section 3 (2) of Customs Tariff Act read with Section 4A of Central Excise Act, on importation of the said goods these are liable to be affixed with M.R.P and assessed accordingly for determining the CVD, after allowing abatement as per the notification issued under Section 4A of Central Excise Act. We find that the goods were imported in the year 2011 under 14 Bills of Entry out of which 8 are live consignments and 6 are past consignments. The adjudicating authority had rejected the R.S.P declared and affixed on the goods by the appellant on the sole ground that contemporaneous imports of similar goods where higher RSP was declared by the importer. On perusal of SCN, it is seen that the adjudicating authority listed out a comparative chart of declared R.S.P and contemporaneous R.S.P. of various brands and models of mobile phones. It is pertinent to see that there is no procedure laid out under Customs Act for redetermining the R.S.P on packaged commodities imported by any person for subsequent sale. Therefore, any dispute on R.S.P or re-determination of R.S.P on the imported goods it has to be done only in terms of Section 4A read with Rule 4 of R.S.P. Rules, 2008 read with SWM Act. Once the goods are declared as packaged commodity intended for retail sale, it is mandatory to affix R.S.P. as per the S.W.M. Act. In the instant case, we find that Revenue has accepted the import price of mobile phones paid by the importer to the overseas supplier as normal price under Section 14 of Customs Act and there is no dispute of any under invoice or misdeclaration of import price. It is peculiar case where there is no valuation dispute on the price paid or payable on the imported goods for determining transaction value under Section 14 but the revenue has only disputed RSP declared on the imported goods. When the Customs authorities disputed the RSP declared by the appellants, the adjudicating authority assumed the role of Central Excise authority and any redetermination of RSP has to be strictly in accordance with Section 4A of Central Excise Act read with RSP Rules 2008 and SWM Act. The Government introduced MRP based assessment on packaged commodities covered under SWM Act for assessment and levy of excise duty and Section 4A was introduced in the Central Excise Act and notification issued listing out commodities covered under this section with abatement on RSP for each commodity. The Section 4A (4) of Central Excise Act, is extracted as under :-
Section 4A. Valuation of excisable goods with reference to retail sale price-
(4) where any goods specified under sub-section (1) are excisable goods and the manufacturer
(a) removes such goods 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 chares towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale;
As seen from the above statutory provisions, we find that the authority can only redetermine or dispute the retail sale price only if the manufacturer has not declared R.S.P on the packages or not declared the actual R.S.P or tampers with, obliterates or alters the R.S.P. declared on the package of such goods. It stipulates the criteria how to determine the R.S.P. if the declared R.S.P is not acceptable by the Excise authorities. Rule 4 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008 [RSP Rules 2008] clearly explains the methodology sequential manner and if the identical goods are manufactured and are removed within a period of one month before or after removal of such goods, by declaring the R.S.P. then the said declared R.S.P shall be taken as the R.S.P of such goods. Whereas in the present case, we do not find any evidence by the Revenue to show the actual R.S.P of the cell phones sold by the appellant for retail sale to ultimate customer and there is no evidence that they have altered the R.S.P subsequently or tampered the R.S.P. We find that the appellants have cleared the imported goods as per the declared R.S.P to the ultimate customer and if there is no flow back from the retail seller to the appellant than the declared R.S.P. has to be accepted and the onus is on the Revenue to prove that appellants have sold the said goods at a higher price than the R.S.P. declared.
9. We find that the entire proceedings of redetermining the R.S.P. on the imported goods carried out by the Customs is purely based on the contemporaneous RSP noticed as per the NIDB data and stray market enquiry of other cell phones importers. As already discussed in the preceding paragraphs, this is not the case of assessment under Section 14 or enhancement of value of imported goods where the importers declared price is not accepted and the assessment is resorted to Section 14 read with Customs Valuation Rules and value is loaded based on contemporaneous import. This method of valuation of enhancing the import price based contemporaneous imports is not applicable to R.S.P and not comparable as there is no concept of contemporaneous RSP under Section 4A and each RSP is specific to that product. The adjudicating authority having chosen to re-determine the RSP as per Section 4A on imported goods has not followed any of the provisions of Section 4A or RSP Rules.
10. It is pertinent to see that the adjudicating authority in his findings at para-33 held that he is not concerned on what price the importer have ultimately sold their goods in retail but concerned only with correct R.S.P and alleged that appellants have not declared the correct R.S.P. Once the adjudicating authority disputes the R.S.P, the burden is on the Revenue to establish at what price such goods were sold by the appellants to the ultimate consumer. If it is found that appellant altered or tampered RSP or sold at higher than RSP then they are liable for any action under Section 4A. In this regard, we rely the Honble Supreme courts judgement in the case of I.T.C Ltd. Vs CCE New Delhi (supra) wherein the Honble Apex Court laid down the principles on M.R.P. The relevant paragraphs of the order are reproduced as under :-
"47. Examples of the third kind of declaration are usually to be found where assessment under Statute A is dependent upon a basis provided by Statute B. In such case, the assessing officers under Statute A cannot question the basis. That is within the province of the authorities under Statute B.
48.? In the decision of Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. - 1969 (1) SCC 91, the furnishing of a declaration under Section 12(1) of the Foreign Exchange Regulation Act, 1947 was a pre-condition to the export of goods under the Customs Act, 1962. This Court said that the correctness of the declaration could not be questioned by the Custom Authorities on the ground that the declaration under Section 12(1) of FERA was incorrect. Similarly, in M. Narasimhaiah v. Deputy Commissioner for Transport - 1987 (Supp.) SCC 452, the Karnataka Motor Vehicles Taxation Act provided for taxation with reference to a number of passengers which the vehicle was permitted to carry. The assessee had a permit issued under the Motor Vehicles Act, 1939 which permitted him to carry a number of passengers. On the basis that the assessee had carried passengers above the permitted limits, tax was sought to be levied under the Taxation Act in respect of the assessees vehicle. This Court held that when the statute itself provided for the highest levy of tax on the basis of the number of passengers permitted to be carried in the vehicle, the Court could not ignore the phrase which the vehicle is permitted to carry and levy tax on the basis of the actual number of passengers carried. The most recent decision which illustrates the third kind of declaration is the decision in Apollo Tyres Ltd. v. CIT, Kochi - 2002 (9) SCC 1 in which Section 115-J of the Income Tax Act, 1961 was construed with reference to the budget speech of the Finance Minister while introducing that Section into the Act. The Section provided for the payment of minimum tax by every company on the basis of its profit and loss account prepared in accordance with the specified provisions of the Companies Act. This Court held that the assessing officer under the Income Tax Act had no power to re-scrutinise the account by embarking upon a fresh inquiry in regard to the entries made in the Books of Account of the Company. Similarly, in terms of the notification we are called upon to construe, the Excise Authority is required to act on the basis of the printed MRP. The notification does not envisage an inquiry into the correctness of the MRP printed on the packages by the Excise Officer. As far as he is concerned, he is limited to satisfying himself that there is a declaration in the prescribed form. To hold otherwise would not only defeat the object with which the notification was introduced but lead to a reversion to the earlier mode of assessing the value of the manufactured commodity, the uncertainty associated therewith and an impossibly chaotic situation as we shall subsequently indicate. The reliance on the Rules and forms by the Revenue appertaining to assessments does not therefore carry its case any further."
The ratio of the Apex Court decision is squarely applicable to the present case. The Honble Supreme Court in the above case has clearly held that R.S.P declared is mandatory under the SWM Act it cannot be altered. The implementing authority has no power to rescrutinise or question that M.R.P which is covered under the S.W.M.Act. The Department can only satisfy itself that there is a declaration of RSP in the prescribed format. Further, we also find that the adjudicating authority has relied market enquiry estimate quotations as evidence of contemporaneous RSP imports which is not in conformity with R.S.P. Rules.
11. Further, we find, the lower authority while re-determining the R.S.P on the imported goods relied NIDB data of past imports. Whereas the appellant had produced their own R.S.P invoices (51 nos.) of lesser RSP before the adjudicating authority which is not considered on the grounds as per Rule (4) RSP of goods cleared in the past which is beyond 1 month is not comparable. If L.As view is accepted the same principle applies to NIDB data relied by the L.A. The L.A has also not brought out any evidences whether the appellant violated any of the provisions of SWM Act (LMA) as declaration of MRP/RSP on the packaged goods is within the ambit of SWM Act which is adopted for Central Excise purpose under Section 4A. By respectfully following the Honble Supreme Court above decision we hold that in the absence of any material evidence that RSP declared by the appellant on the mobile phones are tampered, altered or any flow back received the redetemination of RSP ordered by the adjudicating authority in the impugned order based on contemporaneous R.S.P of imported goods is not in conformity with Section 4A read with R.S.P. Rules 2008 and SWM Act for demanding CVD is liable to be set aside and liable to be remanded to L.A for re-determination of RSP as per Section 4A read with RSP Rules and SWM Act. We find voluminous records were submitted by the appellant before the adjudicating authority in support of retail sale price of their goods. We direct the adjudicating authority to verify the details of R.S.P of the imported goods cleared by the appellants and see whether the appellants have sold the goods as per the declared RSP or whether they have altered the RSP or sold it at higher price than what was declared on RSP of such goods and also to verify whether any flow back received for the retail supplier and determine the R.S.P strictly in accordance with Section 4A read with Rule 4 of RSP Rules 2008 read with SWM Act. We hold that no contemporaneous RSP is applicable under Section 4A. The present remand is only for limited purpose as indicated above. If the adjudicating authority is not able to establish any of the conditions specified in Section 4A/RSP Rules then the declared RSP shall be accepted.
12. As regards the quantity of excess goods found, which is misdeclared or undeclared the same are liable for confiscation. Since the re-determination of RSP is also involved on these goods after re-determining the R.S.P, the L.A shall pass a fresh order on the excess goods which are seized.
13. We also find that live consignments of two containers are still with the Customs custody. The appellants have already deposited Rs.32,20,377/- lakhs which stands appropriated in the order and the bank guarantee of Rs.22 lakhs has also been encashed by the department. Appellant also submits that they have paid another Rs. 16 lakhs which was not recorded in the order. Since the demand is set aside and remanded to L.A, the appellants prayer for release of the goods of two containers covering Bills of Entry No.5232333/18.11.2011 and B/E No.5356566/22.11.2011 on which duty is claimed to have been paid already merits consideration. Therefore, it would suffice that appellant shall deposit an amount of Rs.10,00,000/- (Rupees Ten lakhs only) in addition to Rs.22 lakhs already encashed, and upon deposit, the adjudicating authority shall release the said goods of two containers with necessary Bond.
14. The adjudicating authority is directed to complete the de novo proceedings within a period of 3 months from the date of this order and appellant shall co-operate with the de novo proceedings and produce all the relevant documents.
15. In view of the foregoing discussions, both the appeals are allowed by way of remand in the above terms.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
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