Commissioner Of Customs (Import), ... vs M/S. Genuine Trade International

(Arising out Order-in-Appeal No. 580/2006/MCH/Joint/ Gr.2B dated 21.11.2006 passed by the Commissioner of Customs (Appeals), Mumbai I)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Seen of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Commissioner of Customs (Import), Mumbai I Appellant

Vs.

M/s. Genuine Trade International Respondent

Appearance:

Shri M.K. Mall, AC (AR) for the appellant None for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 29/05/2015 Date of decision : 29/05/2015

O R D E R No:..

Per: M.V. Ravindran:

This appeal is filed by the Revenue against Order-in-Appeal No. 580/2006/MCH/Joint/ Gr.2B dated 21.11.2006. The assessee has also filed a cross objection against the said appeal.

2. Heard the ld. Departmental Representative.

3. The respondent assessee is unrepresented. Since the issue lies in a very narrow compass, we take up the appeal for disposal on merits even in the absence of any representation from the respondent assessee.

4. The issue involved in this appeal is regarding the discharge of countervailing duty on import of Cyanoacrylate Adhesive Alteco. The imported consignment is classifiable under CTH 35069190 and said sub-heading is covered under the Notification for discharge of Central Excise duty under the provisions of Section 4A of the Central Excise Act, 1944 i.e. based upon retail sale price. It is the case of the revenue that appellant imported the adhesive and sold the same in domestic market under MRP of `525 per kg. The assessee was issued a short payment notice which was contested by them before the Adjudicating Authority. The Adjudicating Authority held against the assessee and ordered that the valuation of the goods imported for CVD purpose is put under Section 4A of Central Excise Act, 1944; he also confiscated the goods with an option to redeem the same on payment of Redemption Fine and also imposed penalty under provisions of Section 112(a) of the Customs Act, 1962. Aggrieved by such an order an appeal was preferred before the first appellate authority. The first appellate authority after considering the facts of the case and various documents and hearing both sides set aside the impugned order by recording the following findings.

I have carefully gone through all the submissions made by the appellant and the case records. It is an established fact that the appellant has classified the goods under the CTH 35069190 which was accepted by the department through the RMS scheme. A perusal of the packing list submitted by the appellant has revealed that the impugned goods are in bulk packing of 20 kgs. but not in retail packing such as 3gms./50gms./100gms./500gms. etc. In view of the Board Circular 625/16/2002 CX dated 28.02.2002, the subject goods should have been assessed to CVD as per Section 4 of the C. Ex. Act but not as per Section 4 A of the C.Ex. Act. The impugned goods are not covered under Standard of Weight & Measures Act, 1976. In this regard, the appellant's arguments are valid and to be accepted. The appellants claim of bulk packing, and non applicability of Standard of Weight & Measures Act, 1976 and therefore, the impugned goods are to be assessed to CVD under Section 4 of the Central Excise Act but not under Section 4A of the Central Excise Act. The Honble CESTAT in the case of Swan Sweets Pvt Ltd vs. Commissioner Of C.Ex (Tri-Mumbai) 2006(198)ELT 565 has held that a packaged commodity is intended for retail sale or not will depend on the persons who organize the distribution and sale of the product and none else and paramount importance is to be given to the words 'sold to the ultimate consumer' .In the present case, the appellant has specified that the impugned goods are to be sold to the wholesaler but not to the ultimate consumer. Hence, the assessment made under Section 4A of the Central Excise Act is contrary to the law.

5. As against the above reproduced factual finding of the first appellate authority, Revenues grounds of appeal did not have any controverting evidence. Revenues grounds of appeal only talks about statutory requirement to declare retail price as per the Standard Weight & Measures (Packed Commodities) Rules, 1977 and there being no exemption for declaration. Besides this there are no other grounds of appeal urged in the impugned order. Ld. Departmental Representatives contention that it would fall under the category of goods covered under MRP retained is also without any persuasive value for us to hold that the impugned order is erroneous.

6. In view of the foregoing, we find that the impugned order is correct and legal and does not suffer any infirmity.

7. Appeal is rejected.

(Operative part pronounced in Court)

(P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial)

//SR

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