2016 (4) TMI 13 - AT - Central Excise

Valuation of Goods under Section 4 i.e Transaction Value or under Section 4A i.e MRP based value - Differential duty demand - revenue proposing to assess the goods under Section 4A as per the M.R.P - goods cleared to industrial consumers by the assessee as free supply - Held that - As decided in Jayanti Food Processing (P) Ltd. Vs CCE Rajasthan 2007 (8) TMI 3 - Supreme Court what is material is the definition of retail sale price . The requirement of Rule 6(1)(f) is specific. It requires the retail sale price of the package be printed or displayed on the package. If there is no sale involved of the package, there would be no question of Rule 6(1)(f) being attracted. There is a clear indication in the definition of retail sale price as provided in Rule 2(r) which clearly explains that the MRP means the maximum price at which the commodity in packaged form may be sold to the ultimate consumer. Thus, the definition of sale in Section 2(v) of the SWM Act becomes relevant. Therefore, unless there is an element of sale, as contemplated in Section 2(v), Rule 6(1)(f) will not be attracted and thus such package would not be governed under the provisions of SWM (PC) Rules which would clearly take such package out of the restricted arena of Section 4A(1) of the Act and would put it in the broader arena of Section 4 of the Act The ratio of the above case law is squarely applicable to the present case as the goods are sold to the industrial consumers who in turn supplied these goods as free gifts and these are not ultimately sold in retail sale either by the consumer or by the person who purchases it or by the ultimate buyer. Thus we hold that the detergent powders cleared to the industrial consumers are exempted from M.R.P. and not covered under Section 4A. Accordingly, we hold that differential duty confirmed in the impugned orders are liable to be set aside - Decided in favour of assessee

Summary

Issues Involved:
1. Whether goods cleared to industrial consumers as free supply should be assessed under Section 4A or Section 4 of the Central Excise Act.
2. Change of cause title due to amalgamation.

Issue 1: Assessment under Section 4A or Section 4 of the Central Excise Act

Facts:
The appellants, manufacturers of detergent powders, supplied goods both for retail sale and to industrial consumers (e.g., M/s. Duncan's India Ltd., Tata Tea Ltd.) as free gifts along with their products. They assessed these goods under Section 4 of the Central Excise Act. The Revenue issued show cause notices demanding differential duty under Section 4A, which was confirmed by the adjudicating authority and upheld by the Commissioner (Appeals).

Arguments by the Assessee:
The assessee argued that Section 4A applies only to goods required to declare MRP under the Standards of Weights and Measures Act, 1976, and not to goods sold in bulk to industrial consumers. They relied on various case laws, including Jayanti Food Processing (P) Ltd. vs. CCE Rajasthan, and Board's circular dated 28.2.2002, which clarified that goods sold to industrial consumers and not in retail should be assessed under Section 4.

Arguments by the Revenue:
The Revenue contended that the goods are covered under packaged commodities and fall under the S.W.M. Act. They argued that even if goods are supplied as free gifts, they should be assessed under Section 4A if they are covered under MRP. They relied on case laws like Macneill Engineering vs. CCE and BPL Telecom (P) Ltd. vs. CCE Cochin.

Tribunal's Findings:
The Tribunal noted that the issue is whether goods supplied as free gifts to industrial consumers should be assessed under Section 4A or Section 4. The Tribunal referred to the Supreme Court judgment in Jayanti Food Processing (P) Ltd. vs. CCE Rajasthan, which held that goods sold to industrial consumers for free distribution are not subject to MRP assessment under Section 4A. The Tribunal also cited its own decision in Butterfly Gandhimati Appliances Ltd. & Another vs. CCE Chennai-III, which supported the assessee's position.

Conclusion:
The Tribunal held that the detergent powders cleared to industrial consumers are exempted from MRP assessment and should be assessed under Section 4. The differential duty demands in the assessee's appeals were set aside, and the Revenue's appeals were rejected.

Issue 2: Change of Cause Title

Facts:
The respondents, M/s. Henkel SPIC India Ltd., filed miscellaneous applications for changing the cause title to M/s. Henkel India Ltd. due to a scheme of amalgamation approved by the Hon'ble High Court.

Tribunal's Findings:
The Tribunal allowed the miscellaneous applications for change of cause title and directed the registry to amend the cause title accordingly.

Conclusion:
The Tribunal ordered the change of cause title from M/s. Henkel SPIC India Ltd. to M/s. Henkel India Ltd. as per the High Court's order.

Final Judgment:
The assessee's appeals (E/1236, 1237/2004) were allowed, and the impugned orders were set aside. The Revenue's appeals (E/1368, 1369/2004) were rejected. The miscellaneous applications for change of cause title were disposed of.