CCE Vs TRIMURTY FRAGRANCES PVT LTD: ALLAHABAD HIGH COURT (Dated: October 28, 2015)
Central Excise - Pan Masala - Notification No. 30/2008-CE (N.T.), dated 1.7.2008 was issued under Section 3A of the CEA 1944, framing the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 ('PMPM Rules') - Under the rules, when a single line or single track packing machines pertains pan masala pouches having a retail sale price (RSP) upto Rs. 1.00 its deemed production would be 37,44,000 per month per machine-In the instant case, assessee during the material period filed the declaration under Rule 6 declaring intention to manufacture certain kinds of pan masala pouches - The returns were also filed for these months which showed manufacture/clearances of pan masala with tobacoo having RSP of 50 p - On the basis of this information provided by the assessee, the Department inferred that during the each of these months the assessee used the installed machines for manufacturing of pan masala with tobacoo of having a retail sale price of Rs. 1 per pouch as well as having a new retail sale price of Rs. 0.50 and, on this basis, invoked the first proviso to Rule 8 of the 'PMPM Rules', adjudicated duty demand with interest and penalty, holding inter alia that the assessees had also commenced manufacturing of the goods of a new retail sale price i.e. 50 per pouch on an existing machine and, therefore, it would be deemed to be an addition in the number of operating packing machine for the month in question - Tribunal set aside the demands, now agitated by Revenue herein.
Held: A new retail sale price is the retail sale price which belongs to a new RSP slab as contemplated in Rule 5 of the Rules - RSP is defined at Rule 2(f) ibidem as the maximum price at which the specified goods in packaged form may be sold to the ultimate consumer - the expression "new retail sale price” has to be understood as contemplated under Rule 5 which specifies the deemed production per operating machine per month and this deemed production is specified for different RSP slabs - The rate of duty per machine specified in the Notification of 1st July 2008 is on its production, namely, if pouches upto Rs. 1.00 is manufactured, its deemed production would be 37,44,000 pouches. [Para 5, 7, 8]
Even if the machine manufactures in a particular month pan masala or pan masala with tobacoo pouches of 50.0 and Rs. 1.00, its deemed production would still be 37,44,000 pouches on which duty would be leviable - The proviso to Rule 8 would not be applicable nor can there be a supposition that there would be deemed to be an addition in the number of operating packing machines for the month in question on the strength that a new retail sale price has come into existence on an existing manufacturing machine - for the purpose of Rule 5, pouches within a particular RSP slab would be the same for the purpose of determining the deemed production per month - no dispute that the assessee had ever manufactured pan masala with tobacoo in pouches above Rs. 1.00, and, therefore, maximum deemed production as specified in Column-3 to the Table in Rule 5 could not exceed the figure indicated thereunder - no error in the impugned order. [Para 9-11]
Appeal dismissed
2015-TIOL-2715-HC-MAD-CUS
ZAKIR ALI KHAN Vs CC: MADRAS HIGH COURT (Dated: October 8, 2015)
Customs - confiscation - Officers of Air Intelligence Unit intercepted the petitioner, who arrived from Bangkok on 14.11.2007 on suspicion that he might be carrying high valued goods in commercial quantity - Personal search of the petitioner resulted in the recovery of certain number of packets containing assorted precious/semi-precious stones, which were seized under a mahazar on the ground that they were attempted to be smuggled into India by way of mis-declaration - the impugned goods were confiscated under the provisions of Customs Act 1962 read with Foreign Trade (Development and Regulation Act 1962) - The Tribunal remanded the case with regard to the seizure of goods from the petitioner, whereupon denovo adjudication order was passed and agitated herein - impugned goods confiscated under Section 111(d), 111(i), 111(l) and 111(m) of the Customs Act, 1962 with an option to redeem the goods on payment of RF computed on basis of whether it would be subsequently exported or cleared into domestic area; and penalty imposed on the appellant under Sec 112 ibidem.
Held: The respondents are obliged under law to take a decision for allowing re-export of the goods on payment of fine and penalty; Not having done so, has caused serious prejudice and hardship to the petitioner, despite the order of the first respondent, allowing redemption of the goods under seizure for confiscation for re-export - In the absence of any appeal against the said order of the first respondent, there is no legal impediment for the respondents to act in terms of the order in adjudication dated 14.7.2010 and cause release of the confiscated goods on payment fine and penalty for the purpose of re-export - There is no denial with regard to the availability of the goods by the customs authorities even after a period of 5 years - the continued detention and non-release of the goods at the hands of the respondents cannot be sustained or countenanced - Hence, to give quietus to the issue, the petitioner is directed to pay redemption charges of Rs.3,50,000/- along with cost of Rs.50,000/-, in total Rs.4 lakhs along penalty of Rs.2 lakhs within a period of two weeks from the date of receipt of a copy of this order and on such payment of Rs.6,00,000/- (Rupees six lakhs only) the respondent shall permit him to redeem the goods strictly for the purpose of re-export within a further period of two weeks, thereafter - After redemption, if any violation is found out, it is always open to the authority to proceed against the petitioner in accordance with law. [Para 9, 10]
WP disposed of
2015-TIOL-2714-HC-MAD-CUS
SARAN ENTERPRISES Vs CC: MADRAS HIGH COURT (Dated: October 15, 2015)
Customs - Provisional release - Appellant imported 353 Cartons of Ribbons from China and submitted that they had declared the value of above goods at USD 1.10 per Kg - Thereafter, 1st check was ordered and completed and during examination the SIIB by de-stuffing the goods thoroughly had found the description and weight fully tallied with the invoice declaration - Thereafter, the petitioner had requested the respondents to release the goods; the value was verified and the declared value of USD of 1.10 per Kg, was accepted - the Bill of Entry was assessed by the Proper Officer and the petitioner had requested the respondents to release the goods provisionally on the value declared by the petitioner at USD 1.10 per Kg., - non release of the goods culminated in the instant Petition.
Held: It is claimed that the goods in question are freely importable goods and there is no restriction or prohibition for the same - When the SIIB by de-stuffing the goods inspected and found that the description and weight are fully tallied with the declaration, there is no justifiable reasons for delaying the assessment of duty and release of the goods - to give quietus to the issue, the respondent is directed to assess the value of the goods as expeditiously as possible according to the prevailing rate - In the meantime, in the interest of justice, as an interim measure for releasing the consignment, the petitioner is directed to pay the actual duty according to the invoice value and further, pay the differential duty to the tune of 30% and for the remaining 70% of differential duty, the petitioner is directed to execute a bond - On such compliance, the goods detained shall be released forthwith and Other proceedings in the manner known to law be proceeded with. [Para 6]
WP disposed of
