2016 (7) TMI 1420 - AT - Central Excise

Valuation - Cement - requirement of RSP - N/N. 4/2006-CE dated 01.03.2006, as amended, and not Sl No. 1C thereof - Department took the view that affixing the RSP on the bags was not correct as the sale to APSHCL was not a retail sale as defined under rule 2(q) of the Standards of Weights and Measures Packaged Commodities Rules, 1977 - Held that - Once the Legal Metrology authorities have clarified and informed the appellants that supplies made by them even to institutional buyers are not excluded from the declaration of MRP under the Packaged Commodities Rules, the appellant has to necessarily fall in line and declare MRP on the cement packages held by them and in consequence, the goods will necessarily attract the effective rate of duty envisaged in Sl No. 1A of the table in N/N. 4/2006-CE dated 01.03.2006, as amended, and not Sl No. 1C thereof as held by department. Identical issue decided in the case of H & R JOHNSON (INDIA) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAIGAD 2014 (6) TMI 453 - CESTAT MUMBAI , where it was held that on the packages, the appellant has not made any declaration that the packages are not meant for retail sale or the packages are meant for use by any specified industry . In the absence of such markings on the packages, it cannot be said that the goods supplied were not in retail packages. The order of Commissioner (Appeals) dated 27.02.2013 interalia that the duty liability shall be determined under Sl. No. 1A of the Notification No. 4/2006 dated 01.03.2006, does not require any interference - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Classification of sales to APSHCL as retail sales.
2. Applicability of Standards of Weights and Measures (Packaged Commodities) Rules, 1977.
3. Determination of duty liability under Notification No. 4/2006-CE.

Issue-wise Detailed Analysis:

1. Classification of Sales to APSHCL as Retail Sales:
The primary issue revolves around whether the sales made by the appellant to APSHCL qualify as retail sales. The department contended that the sales to APSHCL were not retail sales as defined under Rule 2(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (SWM (PC) Rules). They argued that the sale to APSHCL was a bulk sale and thus should not have the Retail Sale Price (RSP) printed on the cement bags. However, the Commissioner (Appeals) held that the nature of the sale (retail or otherwise) was irrelevant for the purpose of the exemption under the subject Notification, as long as the goods were cleared in packaged form and bore the RSP.

2. Applicability of Standards of Weights and Measures (Packaged Commodities) Rules, 1977:
The department argued that the sales to APSHCL were not covered under the SWM (PC) Rules, 1977, and thus, the printing of RSP on the cement bags was incorrect. They referenced a letter from the Controller, Legal Metrology, Hyderabad, which clarified that the declaration on cement packages should be in the manner of "Maximum Retail Price...inclusive of all taxes." The appellant produced similar clarifications from the Legal Metrology Department, indicating that even supplies to institutional buyers required MRP declaration. The Tribunal distinguished the facts of this case from the Sagar Cements case, emphasizing that the competent authority had clarified the necessity of MRP declaration for supplies to APSHCL.

3. Determination of Duty Liability under Notification No. 4/2006-CE:
The core of the dispute was whether the appellant should discharge duty under Sl. No. 1A or Sl. No. 1C of Notification No. 4/2006-CE. The Commissioner (Appeals) concluded that since the goods were in packaged form and bore the RSP, they should be assessed under Sl. No. 1A. The department's appeal argued that the goods should be assessed under Sl. No. 1C, as the sales were not retail sales. The Tribunal upheld the Commissioner (Appeals) decision, stating that once the Legal Metrology authorities clarified the requirement of MRP declaration, the appellant had to comply, and thus, the goods attracted the effective rate of duty under Sl. No. 1A.

Conclusion:
The Tribunal dismissed the department's appeal, affirming the Commissioner (Appeals) order that the duty liability should be determined under Sl. No. 1A of Notification No. 4/2006-CE. The Tribunal emphasized the clarifications from the Legal Metrology authorities and referenced relevant case law to support its decision. The operative part of the order was pronounced in court at the conclusion of the hearing.