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3.3. Further the learned advocate has submitted that the definition of institutional consumer or industrial consumer as laid down under Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011 means those persons who procure goods directly from the manufacturers/packer and in the case of imported goods, the definition of 'industrial consumers' to be held that those persons who procure goods directly from the importer since the obligations of the importer under Legal Metrology Act in respect of imported goods is similar to that of a local manufacturer/packer in respect of manufactured goods. Further, they have referred judgment in the cases of Henkel CAP Pvt. Ltd. Vs. CC(Import), JNCH, Mumbai-II [2012(282) ELT 566 (Tri.)] and UT Starcom Inc. Vs. CC (Port-Import), Chennai [2019(370) ELT 937 (Tri. Chennai)](affirmed in 2020(371) ELT A47 (SC)) wherein it is held that importer was not required to comply with the compliances relating o retail sale as the imported goods were sold to industrial / institutional consumers. Since the imported goods are sold directly by the appellant to the industrial consumers / distributors, the same are excluded from application of Chapter II and affixation of MRP in terms of Rule 3 of the Legal Metrology (Packaged Commodities) Rules, 2011. Further, he has submitted that the Legal Metrology (Packaged Commodities)(Amendment) Rules, 2011 prescribed C/21135, 21137, 21138, 21287/2014 that industrial consumer means the consumer who buys packaged commodities directly from the manufacturer or from an importer or from wholesale dealer for use and the package shall have declaration 'not for retail sale'. He has submitted that the said amendment was brought by way of substitution of Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules; therefore, it has got retrospective effect. In support, they have referred to the judgment of the Hon'ble High Court of Karnataka in the case of CCE Vs. Fosroc Chemicals (India) Pvt. Ltd. [2015(318) ELT 240 (Kar.)] and judgment of Hon'ble Apex Court in the case of GOI Vs. Indian Tobacco Association [2005(187) ELT 162 (SC)].

6. The main issue involved in the present case relates to determination of applicability of MRP/RSP based assessment of imported goods cleared to/meant for industrial consumers as declared by the appellant in their Bills of Entry as "NOT FOR RETAIL SALE".

C/21135, 21137, 21138, 21287/2014

7. Undisputed facts of the case are that during the relevant period June 2008 to November 2012, the appellant had imported lubricants and lubrication preparations of various brands. They have declared in their Bills of Entry filed against the said imports 'not for retail sale' and claimed assessment of additional customs duty (CVD) on assessable value + BCD instead of MRP/RSP based assessment. It is alleged that in terms of Notification No.14/2008-CE(NT) dated 01.03.2008 as amended, lubricant oils and lubrication preparations falling under Chapter heading 2710 and 3403 are assessable to duty under Section 4A of CEA, 1944 for payment of additional duty of customs(CVD) under sub- section (1) of Section 3 of Customs Tariff Act, 1975. The appellant by declaring the goods in the Bills of Entry 'not for retail sale' claimed exemption from application of Section 4A of CEA, 1944 claiming that these goods were cleared to industrial consumers directly or through their stockists/distributors. In the impugned order, the learned Commissioner referring to the definition of 'industrial consumer' and 'institutional consumer' under the Legal Metrology (Packaged Commodities) Rules, 2011 held that since the goods are not directly purchased by the industrial consumers from the manufacturer and the appellant being an importer, the sales/clearances made directly or through their distributors to the industrial consumers cannot fall within the definition of 'industrial consumers' even if such goods are ultimately consumed by industrial consumers. Against the said finding of the adjudicating authority, the categorical plea of the appellant through their reply to the show-cause notice as well as before the adjudicating authority was that at the time of import itself in the Bills of Entry, it has been categorically made clear through the declaration that the imported goods are not meant for retail sale; hence they were not required to affix the RSP on the packages even though in some packages the RSP was affixed at the time of clearance as insisted by the department.

C/21135, 21137, 21138, 21287/2014

8. We have carefully analysed the allegation in the show- cause notice and finding recorded by the Ld. Commissioner. It is nowhere alleged in the notice that even though the appellant had made a declaration in their Bills of Entry that the goods are 'not for retail sale'; however, the goods, instead of clearance to industrial consumers, have been sold in retail to the ultimate consumers. On the contrary, it is alleged in the show-cause notice that the importer in relation to the goods covered under the Bill of Entry was not an industrial/institutional consumer hence the goods imported by them attract application of Legal Metrology (Packaged Commodities) Rules, 2011. Consequently, the goods imported by the appellant and sold to the dealers / industrial customers liable to be assessed to additional duty of customs(CVD) on the basis of RSP/MRP. We find that in the respective statements of the employees recorded by the department during investigation as well as later in their reply to the notice, the appellant all along have been contending that the goods are meant and sold to industrial consumers only either directly or through their distributors/stockists.

11. The learned Commissioner has concluded interpreting the relevant provision of Legal Metrology (Packaged Commodities) Rules, 2011 that since the appellant is an importer and not an industrial or institutional consumer, even though declared in each and every Bills of Entry that the goods were not meant for retails sale and cleared to industrial consumers, hence the goods imported by them attract the provisions of Legal Metrology (Packaged Commodities) Rules, 2011. As observed earlier it is clear that the respective employees whose statements recorded have not admitted to the fact that the Appellant have sold the goods in question to customers other than industrial consumers though declared in the respective Bills of Entry "not for retail sale". Shri Vijay Kumar Suhjani, General Manager (Finance) in his statement dated 09.03.2012 categorically stated that the goods imported are either sold directly to the consumer or to through a distributor. All of them disclosed that they were of the view that RSP was not necessary to be affixed. Thus, it is clear from the evidences on record that all the goods were cleared/sold to industrial consumers directly or through their distributors/stockists by the appellant. Since, all the imported goods in dispute were cleared to industrial consumers only, revision of RSP declared at the time of import will also have no significance.; hence, the demand on this count cannot be sustained.