2012 (6) TMI 495 - AT - Central Excise

Valuation of goods - assessee, engaged in the business of manufacture and sale of various cosmetics products - Revenue contended taxability of Technical Professional Products, sold only to salon for their exclusive internal in-salon use, u/s 4 instead of Section 4A of the Central Excise Act, 1944 on ground that they are neither intended nor offered for retail sale - Commissioner (Appeals) dropped the demand in respect of aforesaid - Held that - It is found that products under Professional product Division have been divided by the assessee into two categories, namely (i) Technical Products, (ii) Retail Products. The dispute as seen from the SCN relates only to Technical Products. However, the Commissioner has proceeded on the wrong footing that the dispute relates to both the products and accordingly Commissioner has arrived at the conclusion. In these circumstances, we set aside the impugned order and send the matter back to Commissioner with the direction that the Commissioner shall give specific findings only with respect to Technical Professional Products having regard to the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 both pre and post 13.01.2007. The Commissioner shall also give finding on limitation.

Summary

Issues Involved:
1. Classification and assessment of Technical Professional Products under Central Excise Act, 1944.
2. Applicability of Standards of Weights and Measures (Packaged Commodities) Rules, 1977.
3. Limitation period for duty demand.

Detailed Analysis:

1. Classification and Assessment of Technical Professional Products under Central Excise Act, 1944:

The central issue in this case pertains to whether the Technical Professional Products should be assessed under Section 4 or Section 4A of the Central Excise Act, 1944. The respondent-assessee, engaged in manufacturing and selling various cosmetic products, categorized their products under four divisions, with the Professional Products Division further divided into Technical Products and Retail Products. The Technical Professional Products were sold exclusively to salons for internal use and were not intended for retail sale. The packages of these products bore the label "product not to be resold to public/for professional use only."

The Revenue argued that these products should be assessed under Section 4, as they were not intended for retail sale, despite the MRP being printed on the packages. The Commissioner, however, misinterpreted the show-cause notice, treating the duty demand as applicable to both Technical and Retail Products, leading to the impugned order being challenged.

2. Applicability of Standards of Weights and Measures (Packaged Commodities) Rules, 1977:

The applicability of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, both pre and post the amendment on 13.01.2007, was a significant point of contention. The Revenue contended that the Technical Professional Products, meant for servicing the salon industry, were outside the purview of these rules prior to 13.01.2007, as per Rule 34, and post-amendment, as per Rule 2A. The respondent-assessee, however, argued that the goods were pre-packed commodities covered by these rules, supported by a clarification from the Deputy Controller of Legal Metrology, which was later withdrawn.

3. Limitation Period for Duty Demand:

The issue of the limitation period for the duty demand was also raised. The Commissioner, while dropping the show-cause notice, did not provide a finding on the limitation. The respondent-assessee argued that if the Revenue's appeal was allowed, the matter should be remanded to the adjudicating authority to decide on the limitation aspect.

Conclusion:

The Tribunal found sufficient reasons to remand the case to the Commissioner for de novo adjudication on both merits and limitation. It was noted that the Commissioner had proceeded on the incorrect assumption that the dispute related to both Technical and Retail Products. The Commissioner was directed to give specific findings regarding the Technical Professional Products in light of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, both pre and post 13.01.2007, and to address the limitation issue if the demand was found sustainable. The appeal was thus allowed by way of remand, with instructions for the Commissioner to pass a speaking order after providing a reasonable opportunity for the respondent-assessee to be heard.