" CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH - COURT NO. 1 Customs Appeal No. 3567 of 2012 (Arising out of Order-in-Appeal No. CC(A)/CUS/306/2012 dated 08.08.2012 passed by the Commissioner of Customs (Appeals), New Delhi) M/s D.D. Industries Ltd …Appellant F-1/9, Okhla Industrial Area Phase I, New Delhi- 110020 VERSUS Commissioner of Customs ...Respondent New Customs House, Near IGI Airport New Delhi- 110037 WITH C/3627/2012 C/3628/2012 C/3629/2012 APPEARANCE: Shri Karan Sachdeva, Shri Somesh Jain and Ms. Shruti Mandora, Advocates for the Appellant Shri Girijesh Kumar, Authorized Representative of the Department CORAM : HON’BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON’BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) DATE OF HEARING: 06.05.2025 DATE OF DECISION: 07.08.2025 FINAL ORDER NOs. 51149-51152/2025 JUSTICE DILIP GUPTA Customs Appeal No. 3567 of 2012 has been filed by M/s D.D. Industries Ltd.1 to assail that part of the order dated 08.08.2012 passed by the Commissioner of Customs (Appeals) that confirms the demand under section 28 (1) of the Customs Act, 19622 with interest under section 28AB of the Customs Act and also imposes penalty under section 112(a) of the Customs Act. 1 the appellant 2 the Custom Act 2 C/3567, 3627-3629/2012 2. It needs to be noted that that Commissioner (Appeals) dropped the demand for the extended period of limitation contemplated under the proviso to section 28(1) of the Customs Act. The Commissioner (Appeals) also dropped the penalties imposed upon the Managing Director of the appellant and also upon the Business Head of the appellant. 3. Customs Appeal No. 3627 of 2012, Customs Appeal No. 3268 of 2012 and Customs Appeal No. 3629 of 2012 have been filed by the department contending that the Commissioner (Appeals) had no power to remand the matter to the adjudicating authority. 4. The appellant is engaged in the business of import, fitment and trading of CNG Kits and components. The complete CNG consists of more than 20 different parts and components, out of which the appellant imports only four parts, namely (i) Reducer, (ii) Refilling valve, (iii) Switch indicator with pipe, and (iv) High pressure pipe. In addition to the above imported components, the appellant also procured other components from the domestic market such as CNG cylinder, mounting/fixing bracket for CNG cylinder, Bracket Nut Bolts, Cylinder Valve, Vent Hose, Vent Hose Clamps, Hi-pr Tube Saddles, Mounting Bracket for CNG cylinder, Nut Bolt for Brocket, etc. 5. As per the requirement under the Motor Vehicles Act, 19883 and the rules made thereunder, the retrofitment of CNG kit on in-use vehicles is required to be carried out by workshops authorized by Kit manufacturer/supplier who have obtained certificate from test agencies authorized under rule 126 of the Central Motors Vehicles Rules, 19894. The customers cannot themselves purchase and install 3 the MV Act 4 The CMV Rules 3 C/3567, 3627-3629/2012 CNG kit in the in use motor vehicle. The appellant installs CNG kit in its workshop namely DD Fuel Solutions or supplies the kit to other authorised workshops. The Transport department has issued Circulars authorizing workshops of the appellant and other workshops. The appellant paid CVD on the transaction value. 6. The department, however, alleged that CVD on “parts, components, assemblies of automobiles of any tariff heading” would be payable on the retail sale price after giving an abatement of 30%. Accordingly, a show cause notice dated 13.01.2010 was issued to the appellant demanding CVD on the basis of retail sale price under the proviso to section 3(2) of the Customs Tariff Act, 19755. 7. The appellant filed a detailed reply and denied the allegations made in the show cause notice. 8. The Joint Commissioner of Customs (Preventive), New Delhi confirmed the demand by order dated 12.01.2011 with interest and penalty equal to the duty amount and also held that the appellant had not declared the retail sale price with intent to evade customs duty. The Commissioner (Appeals), by order dated 08.08.2012, granted relief to the appellant for the extended period of limitation but confirmed the demand for the normal period of limitation under section 28(1) of the Customs Act. The penalty imposed on the appellant under section 114A of the Customs Act was set aside but penalty was imposed under section 112(a) of the Customs Act. The Commissioner (Appeals) also dropped the penalties imposed on the Managing Director and the Business Head of the appellant. 9. Feeling aggrieved by the confirmation of demand for the normal period and imposition of penalty under section 112(A) of the Customs Act, the appellant has filed Customs Appeal No. 3567 of 2012. The 5 the Tariff Act 4 C/3567, 3627-3629/2012 department has also filed three appeals contending that the Commissioner (Appeals) could not have remanded the matter to the adjudicating authority. 10. The relevant portion of the order passed by the Commissioner (Appeals) confirming the differential demand of duty for the normal period under section 28(1) of the Customs Act against the appellant is reproduced below: “13. Considering the issue on merits, the case of the Department is that the Appellant imported CNG kits and evaded Customs duties by paying CVD on the imports of CNG Kits and components on transactional value and not on Retail Sale Price (RSP) basis as required under proviso to sub-section (2) of section 3 of the Customs Tariff Act, 1975 read with section 4A of the Central Excise Act, 1944 read with entry No. 108 of the Notification No.49/2008-C.E.(N.T.); hence, they were required to pay differential Customs duty under proviso to Section 28 (1) of the Customs Act, 1962. The issue is essentially whether the said goods were required to be assessed based on transaction value and RSP under the relevant provisions supra. I find that this issue is settled vide Entry NO. 108 of the said Notification read with CBEC Instruction issued under F. No. 167/38/2008- CEX-IV dated 16.12.2008. It is materially evident and undisputed by the Appellant that CNG kits/components are suitable for use solely or principally declared engines namely, Spark ignition reciprocating or rotary internal combustion piston engines (petrol engines) or Compression-ignition internal combustion piston engines (diesel or semi-diesel engines), hence, it is categorically evident that they are the parts, components and assemblies of automobiles of any Tariff Heading and that such description is provided at Entry No. 108 of the said Notification, which provides 30% abatement on RSP. Hence, the subject goods ought to have been assessed at RSP rather than based on transaction value. The arguments regarding the relevance of Chapter IV of Standards of weights and Measures Act, 1976 and Rule 6 (1) of Standards of Weights and Measures (Packaged Commodity Rules) 1977 are no longer res integra as it is inherent to understand that the said Notification under Section 4 A of the Central Excise Act, 1944 relates to RSP only. Hence, the findings arrived at by the Learned Adjudicating Authority in this regard are not interfered with.” (emphasis supplied) 5 C/3567, 3627-3629/2012 11. It is seen that the Commissioner (Appeals), while confirming the demand of duty for the normal period under section 28(1) of the Customs Act, remarked that it was not disputed by the appellant that the CNG Kits/components are suitable for use solely or principally for declared engines and hence, they are parts, components and assemblies of automobiles. This observation stems from the order passed by the Joint Commissioner wherein after making reference to the statements made by the Accountant of M/s D.D. Fuel Solutions, Business Heads of the appellant, Managing Director M/s Tiger Logistics and the Managing Director of the appellant the Joint Commissioner held that CNG Kits/components were parts/components of internal combustion engines which were covered under the definition of “part, components and assemblies of automobiles” and, therefore, CVD on CNG Kits and its parts was payable on the retail sale price. 12. The relevant portion of the order passed by the Commissioner (Appeals) dropping the demand against the appellant for the extended period of limitation contemplated under the proviso to section 28(1) of the Customs Act is reproduced below: “14. However, I find that the subject goods were declared to the Customs vide the respective Bills of Entry and the same were examined and then cleared after due assessment and payment of Customs duty as per the assessment. In other words, I find that there is nothing on record about the mis-declaration in terms of the description of the goods, quantity and value thereof etc. at any stage except for appropriate assessment under RSP scheme, resulting into the detection of differential Customs duty. Hence, it is not the case that the allegations contain the elements, which are necessary to invoke the proviso to Section 28 (1) of the Customs Act, 1962. I am unable to understand the issue when the subject goods were assessed by the Customs at the relevant port and time and raising the issue of assessment by claiming the existence of such elements, which are not substantiated in any manner. In 6 C/3567, 3627-3629/2012 view of the factual position, it is not the case that the Appellant had not disclosed the material facts regarding the imports at the time of imports by filing the referred Bills of Entry, hence, I am of the considered view that demand in question is liable to be confirmed for the stipulated period from the relevant date as provided under Section 28 (1) of the Customs Act, 1962 and not under proviso to Section 28 (1) of the Customs Act, 1962. Accordingly, the Ld. Adjudicating Authority is directed to re-work the demand and intimate the Appellant the demand amount alongwith interest under Section 28AB of the Customs Act, 1962.” (emphasis supplied) 13. The relevant portion of the order passed by the Commissioner (Appeals) imposing penalty upon the appellant under section 112 (a) of the Customs Act is reproduced below: “15. Regarding the issue of Penalty, I find that the same has been imposed under Section 114A of the Customs Act, 1962, keeping in view the allegations in the impugned SCN and regarding the findings arrived at in the impugned Order-in-Original under the proviso to Section 28 (1) of the Customs Act, 1962 invoking extended period. Since, presently, it is held in the above paragraphs that the impugned demand is restricted to the provisions of Section 28 (1) of the Customs Act, 1962. I, hereby, set aside the Penalty imposed under Section 114 A of the Customs Act, 1962. However, I find that fifth proviso to Section 114A of the Customs Act, 1962 had already provided that Penalty under Section 114A is not applicable, if Penalty under Section 112 was proposed. As is evident since no Penalty was proposed under Section 112 of the Act ibid, I find it appropriate to impose Penalty under Section 112 (a) of the Act ibid; as the subject goods did not suffer appropriate Customs duty and the goods were otherwise liable for confiscation under Section 111 of the Act ibid. Accordingly, keeping in view the given circumstances, I am of the view that penalty should be worked out in the light of Para 14.” (emphasis supplied) 14. The relevant portion of the order passed by the Commissioner (Appeals) dropping the imposition of penalty upon the Managing Director of the appellant is reproduced below: 7 C/3567, 3627-3629/2012 “16. Regarding the issue of Penalty imposed on Appellant-2, 1 find that the Appellant-2 undisputedly was the Managing Director of importer firm during the disputed period. However, it has not come on record that the statement dated 30.11.2009 of the Appellant-2 contained any thing about the Appellant-2 that he in his capacity as Managing Director had purposely and deliberately resorted to mis-declaration in terms of RSP instead of transaction value of the imported goods resulting in evasion of payment of Customs duty and that he did not provide the requisite information on the said bill of entry or that he had allegedly colluded with others acting in a manner to mis-declare. Further. the Appellant-2. being Managing Director, on being called upon the by the Customs Department tendered his said statement, which incidentally was not with reference to his individual role in dealing with the said goods. Further, it is also observed that the subject goods were indeed examined by the Customs authorities at the time of import and assessment thereof. Hence, it is not the case of culpability of the Appellant -2 in his individual capacity. Moreover, Penalty has already been proposed on the Appellant -1. Hence, Penalty imposed would require review in the light of above.” (emphasis supplied) 15. The relevant portion of the order passed by the Commissioner (Appeals) dropping the demand of penalty against the Business Head of the appellant is reproduced below: “17. Regarding the issue of Penalty imposed on Appellant-3, I find that the Appellant-3 undisputedly was the Business Head (Auto Group) of importer firm during the disputed period. However, it has not come on record that the statements dated 06.11.2009, 11.11.2009 and 07.01.2010 of the Appellant-3 contained anything about the Appellant-3 that he in his capacity as Managing Director had purposely and deliberately resorted to mis-declaration in terms of RSP instead of transaction value of the imported goods resulting in evasion of payment of Customs duty and that he did not provide the requisite information on the said bill of entry or that he had allegedly colluded with others acting in a manner to mis-declare. Further, the Appellant-3, being Business Head (Auto Group). on being called upon the by the Customs Department tendered his said statements, which incidentally was not with reference to his individual role in dealing with the said goods. Further, it is also observed that the subject goods were indeed examined by the Customs authorities at the time of import 8 C/3567, 3627-3629/2012 and assessment thereof. Hence, it is not the case of culpability of the Appellant -3 in his individual capacity. Moreover, Penalty has already been proposed on the Appellant 1. Hence, I set aside the Order related to imposition of Penalty on the Appellant-3 for the aforesaid reasons and penalty imposed would require reviewed at original level, in the light of above.” (emphasis supplied) 16. Shri Karan Sachdeva, learned counsel assisted by Shri Somesh Jain and Ms. Shruti Mandora appearing for the appellant made the following submissions: i) The finding recorded that CNG Kits/components are suitable for use solely or principally for declared engines and are, therefore, parts, components and assemblies of automobiles and hence the goods should have been assessed at retail sale price rather than on the transaction value is based on the statements of various persons recorded under section 108 of the Customs Act, which statements cannot be relied upon in the absence of any procedure provided for under section 138B of the Customs Act having been followed; ii) The proviso to section 3(2) of the Tariff Act is not applicable. The presence of the word “and” between clauses (a) and (b) of the proviso to section 3(2) of the Tariff Act indicates that both the conditions have to be simultaneously satisfied. Thus, there must be a requirement under the Standards of Weight and Measures Act, 19766 to declare on the package the retail sale price and there must be a notification under section 4A of the Central Excise Act, 19447 in respect of such article; iii) The present demand has been confirmed merely on the basis that the entry at Serial No. 108 of the Notification No. 49/2008-CE (NT) dated 24.12.2008 issued under section 4A of the Central Excise Act, provides for retail sale price based assessment in respect of “parts, components and assemblies of automobiles. There is no clear finding with respect to the applicability of the provisions of the 1976 Act. Thus, unless there is a requirement under the 1976 6 the 1976 Act 7 the Central Excise Act 9 C/3567, 3627-3629/2012 Act to declare the retail price, the valuation under the proviso to section 3(2) of the Tariff Act cannot be resorted to. In this connection reliance has been placed on the judgment of the Supreme Court in Jayanti Food Processing (P) Ltd. versus Commissioner of Central Excise8; iv) The imported goods are not sold in packaged form and thus the provisions of the 1976 Act are not applicable. In the present case, there is no allegation, evidence or finding by the department that the goods imported were sold in packaged form; v) Rule 2A of the Packaged Commodity Rules provides that the Chapter II shall not supply to packaged commodity meant for Institutional consumers. This rule excludes the applicability of rule 6 (Part of Chapter II) regarding mentioning of retail sale price if the goods are sold to institutional consumers, i.e., consumers in service industry. The CNG Kits are either installed by the workshop of the appellant or are sold to other approved workshops, who in turn retro-fit these Kits in the vehicles of the customers. The goods of appellant are covered under the above exclusion and thus, there is no requirement of declaration of retail sale price; vi) The CNG Kits are not „parts, components or assemblies of automobiles‟. They are accessories. In this connection reliance can be placed on the judgment of the Supreme Court in M/s Annapurna Carbon Industries Co. versus State of Andhra Pradesh9; vii) There is no sale of CNG Kits. They are fitted in the motor vehicles as part of job work/ works contract; viii) The extended period of limitation was not invokable and penalty was not imposable; and ix) Interest is not payable. 17. Shri Girijesh Kumar, learned authorised representative appearing on behalf of the department made the following submissions: 8. 2007 (215) ELT 327 (SC) 9. (1976) 2 SCC 273 10 C/3567, 3627-3629/2012 i) Parts of CNG kit and components are 'parts and component of internal engines' which are covered under definition of 'part component and assemblies of automobiles'. It is covered under Sl. No. 108 of Notification no. 49/2008-CE (NT) dt. 14.12.2008. Therefore, CVD on CNG Kit/components should be charged on retail sale price as provided under proviso to section 3(2) of Tariff Act; ii) Such payment of CVD on retail sale price is mandatory on the basis of the following legal provisions: a. Proviso to section 3(2) Customs Tariff Act; b. Section 4A Central Excise Act; and c. The 1976 Act; iii) CBEC Instructions dated 16-12-2008 clarify that under Serial No. 108 of Notification no. 49/2008-CE (NT) dated. 14.12.2008 'parts component and assemblies' falling under any heading in the Tariff are covered. Hence 'parts, component assemblies of automobiles' includes items like IC engines; and iv) The department has filed appeals to assail the order passed by the Commissioner (Appeals) for the reason that the Commissioner (Appeals) had no power to remand the matter to the adjudicating authority. 18. The submissions advanced by the learned counsel for the appellant and the learned authorised representative appearing for the department have been considered. 19. The contention of the learned authorised representative appearing for the department that the Commissioner (Appeals) had no authority to remand the matter to the Adjudicating Authority cannot, in the facts and circumstances of the case, be accepted. A perusal of the order passed by the Commissioner (Appeals) shows that the matter had been remanded to the Adjudicating Authority only for the purpose of re-determining the amount of penalty, since penalty could not have been imposed upon the Business Head and the Managing Director of the appellant. Thus, the remand is only for calculation of the amount of penalty and it cannot be contended that any issues 11 C/3567, 3627-3629/2012 were required to be re-determined by the Adjudicating Authority. Thus, the three appeals filed by the department deserve to be dismissed. 20. It is because of the finding recorded by the adjudicating authority, based on the statements made under section 108 of the Customs Act that the CNG Kits/components are parts/components of internal combustion engines covered under the definition of “parts, components and assemblies of automobiles” and, therefore, CVD on CNG Kits and its parts would be payable on retail sale price. The Commissioner (Appeals) observed in the impugned order that it was not disputed by the appellant that CNG Kits/components are parts, components and assemblies of automobiles and, therefore, 30% abatement would be available on retail sale price. 21. The issue, therefore, that arises for consideration is whether the statements made under section 108 of the Customs Act can be relied upon when the procedure contemplated under section 138B of the Customs has not been followed. 22. Such statements could not have been relied upon as the procedure contemplated under section 138B of the Customs Act was not followed. This is what was held by the Tribunal in M/s. Surya Wires Pvt. Ltd. vs. Principal Commissioner, CGST, Raipur10. The Tribunal examined the provisions of sections 108 and 138B of the Customs Act as also the provisions of sections 14 and 9D of the Central Excise Act, 1944 and observed as follows: “21. It would be seen section 14 of the Central Excise Act and section 108 of the Customs Act enable the concerned Officers to summon any person whose attendance they consider necessary to 10. Excise Appeal No. 51148 of 2020 decided on 01.04.2025 12 C/3567, 3627-3629/2012 give evidence in any inquiry which such Officers are making. The statements of the persons so summoned are then recorded under these provisions. It is these statements which are referred to either in section 9D of the Central Excise Act or in section 138B of the Customs Act. A bare perusal of sub-section (1) of these two sections makes it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain.” 23. After examining various judgments of the High Courts and the Tribunal, the Tribunal observed as follows: 13 C/3567, 3627-3629/2012 “28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then the statements made under section 14 of the Central Excise Act or under section 108 of the Customs Act during the course of an inquiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when such persons are examined as witnesses before the adjudicating authority and the adjudicating authority forms an opinion that the statements should be admitted in evidence. It is thereafter that an opportunity has to be provided for cross-examination of such persons. The provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 14D of the Central Excise Act or under section 108 of the Customs Act. The Courts have also explained the rationale behind the precautions contained in the two sections. It has been observed that the statements recorded during inquiry/investigation by officers has every chance of being recorded under coercion or compulsion and it is in order to neutralize this possibility that statements of the witnesses have to be recorded before the adjudicating authority, after which such statements can be admitted in evidence.” 24. To determine whether CVD was to be paid on retail sale price or transactional price, it would be appropriate to refer to the relevant portion of the Notification No. 49/2008-CE dated 24.12.200811 and it is as follows: “Notification No. 49/2008-Central Excise (N.T.) The Central Government xxx hereby specified the goods mentioned in Column (3) of the Table below and falling under the Chapter or heading or sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 11. Notification dated 24.12.2008 14 C/3567, 3627-3629/2012 1985 (5 of 1986) mentioned in the corresponding entry in column (2) of the said table, as the goods to which the provisions of sub-section (2) of the said section 4A shall apply, and allow as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table. Table S.No. Chapter, heading, sub- heading or tariff item Description of goods Abatement as a percentage of retail sale price (1) (2) (3) (4) 108 Any heading parts, components and assemblies of automobiles 30 25. It has also to be examined whether the proviso to section 3(2) of the Tariff Act is applicable. The said proviso is reproduced below: \"Provided that in case of an article imported into India,- (a) in relation to which it is required, under the provisions of the Standards of Weight and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such article; and (b) where the like article produced or manufactured in India, or in case where such like article is not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is the goods specified by notification in the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944 (1 of 1944), the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act.\" 26. It is seen that “and” is between clauses (a) and (b) to the proviso. This means that both the conditions have to be 15 C/3567, 3627-3629/2012 simultaneously satisfied. Thus, there should be a requirement under the 1976 Act to declare on the package the retail sale price and there must be a notification under section 4A of the Central Excise Act in respect of said article. The demand has been confirmed basis the entry at Serial No. 108 of Notification dated 24.12.2008 issued under section 4A of the Central Excise Act. There is no finding regarding the applicability of the provisions of the 1976 Act. The proviso to section 3(2) of the Tariff Act would, therefore, not be attracted. 27. In this connection, it would pertinent to refer to the judgment of the Supreme Court in Jayanti Foods Processing wherein the Supreme Court explained the applicability of section 4A of the Central Excise Act and the relevant portion of the judgment is reproduced below: “I. xxx Even at the cost of repetition the following would be the factors to include the goods in Section 4-A(1) and (2) of the Act: (i) The goods should be excisable goods; (ii) They should be such as are sold in the package; (iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package; (iv) The Central Government must have specified such goods by notification in the Official Gazette; (v) The valuation of such goods would be as per the declared retail goods and the assessment of duty would be under Section 4-A of the Act. xxx 27. xxx. We have already shown in the earlier part of the judgment the conditions required for application of Section 4-A. The plain language of Section 4-A(1) unambiguously declares that for its application there has to be the \"requirement\" under the SWM Act or the Rules made thereunder or any other law to declare the MRP on the package. If there is 16 C/3567, 3627-3629/2012 no such requirement under the Act and the Rules, there would be no question of application of Section 4-A. Thus if the appellant is successful in showing that there is no requirement under the SWM Act or the Rules made thereunder for declaration of MRP on the package, then there would be no question of applicability of Sections 4-A(1) and (2) of the Act. Even if the assessee voluntarily displays on the pack the MRP, that would be of no use if otherwise there is no requirement under the SWM Act and the Rules made thereunder to declare such a price.” (emphasis supplied) 28. The Commissioner (Appeals) has held that CVD has to be determined on the basis of retail price because of the applicability of the proviso to section 3(2) of the Tariff Act. As the proviso is not attracted in the present case, the finding recorded by the Commissioner (Appeals) cannot be sustained. 29. It would, therefore, not be necessary to examine the other contentions raised by the learned counsel for the appellant. 30. Hence, the demand for the normal period of limitation contemplated under section 28(1) of the Customs Act could not have been confirmed. Interest also, therefore, could not have been charged from the appellant under section 28AB of the Customs Act. 31. The Commissioner (Appeals) has imposed penalty upon the appellant under section 112(a) of the Customs Act solely for the reason that penalty under section 114A of the Customs Act could not have been imposed upon the appellant, even though penalty under section 112(a) was not proposed to be imposed upon the appellant in the show cause notice. This cannot be a ground for imposing penalty under section 112(a) of the Customs Act. This apart, the Commissioner (Appeals) has not even recorded a finding as to under which clause of section 111 the goods were held liable to confiscation. 17 C/3567, 3627-3629/2012 32. The inevitable conclusion that follows is that the impugned order dated 08.08.2012 passed by the Commissioner (Appeals) in so far as it confirms the demand under section 28(1) of the Customs Act with interest and also imposes penalty upon the appellant under section 112(a) of the Customs Act, cannot be sustained and is set aside. 33. Customs Appeal No. 3567 of 2012 filed by the appellant is, accordingly, allowed. Customs Appeal No. 3627 of 2012, Customs Appeal No. 3628 of 2012 and Customs Appeal No. 3629 of 2012 filed by the department are dismissed. (Pronounced in the open court on 07.08.2025) (JUSTICE DILIP GUPTA) PRESIDENT (P. ANJANI KUMAR) MEMBER (TECHNICAL) Diksha "