Customs, Excise and Gold Tribunal - Mumbai
Bell Granito Ceramic Ltd. vs Commissioner Of Central Excise on 1 July, 2004
ORDER T. Anjaneyulu, Member (J)
1. Heard both sides. This application is Under Section 35F of the Central Excise Act, 1944 for un-conditional dispensation with the requirement of pre-deposit of differential central excise duty of Rs. 20,26,421/- in respect of two show cause notices dated 6.1.2003 and 9.4.2003, which have been confirmed by the Adjudicating Authority.
2. On filing appeal by the assessee, the Commissioner (Appeals) had dismissed the same for non-compliance of the pre-deposit of Rs. 20 lakhs Under Section 35F of the Central Excise Act, 1944 within two weeks from the date of receipt of the order. The appellant also filed miscellaneous application for modification of the stay order and also requested for personal hearing. On hearing the appellant, the appeal was dismissed as no new ground is set forth and they have also failed to make pre-deposit of Rs. 20 lakhs as directed earlier.
3 The appellant is engaged in the manufacture of goods falling under Chapter heading No. 6905.10 of Central Excise Tariff Act, 1985. For evaluation purposes, the goods are covered Under Section 4A of the Central Excise Act, 1944, attracting MRP based valuation. It is alleged that the appellant declared different retail sale prices for different buyers, which was lower than the price declared for the area. The assessee defended that their product is Vitrified Ceramic Tiles falling under Chapter 69 of the Central Excise Tariff Act, 1985 and attracting valuation Under Section 4A of the Central Excise Act, 1944 on the basis of their maximum retail price. The products in question are manufactured and cleared by them in terms of Notification No. 5/2001-CE(NT) dated 1-3-2001 read with the provisions of Section 4A of the Central Excise Act, 1944. The Adjudicating Authority, on due enquiry, confirmed the demand in respect of both the show cause notices and also imposed equivalent amount of penalty under Rule 25F of the Central Excise Rules. Interest is also proposed to be recovered Under Section 11AB of the Central Excise Act, 1944.
4. The learned Advocate for the appellant contends that an explanation provided Under Section 4A of the Central Excise Act, different retail prices, declared on different packages, for different areas, is permissible, but in the same area, different MRPs are not permissible. His submission is that in the case of the appellant, it is nothing to do with the said explanation that the same is covered by the principal provision of Section 4-A, according to which, whatever MRP is declared, on a package, at the time of removal of the goods from the factory, should form the basis for MRP based valuation of the said goods and the region, in which the said goods are sent or dispatched, is immaterial. He also rely upon 2003 (158) E.L.T. 352 (Tri-Del), Hindustan Coca Cola Beverages Pvt. Ltd. v. C.C.E, Allahabad. In the above case, the assessee claimed that what is relevant is the price shown as MRP and not the price shown in the declaration. As the appellant raised a legal issue, the Tribunal is of the view that the same can be considered in detail at the time of hearing of the case. Therefore, it exempted the condition of pre-deposit and ordered stay.
5. Following the same principle and as the similar issue is involved in the instant case, full waiver is granted in respect of the pre-deposit demand made by the Commissioner (Appeals). The matter is remanded back to the Commissioner (Appeals) to decide the same on merits after hearing both sides.
6. The appeal is allowed as remand as per the above terms.