2016 (7) TMI 887 - AT - Central Excise

MRP Based duty u/s 4A or transaction value u/s 4 - bulk supply of malted milk food, malted food and malt extract powder etc. - sale of rejected lot to other customer - Held that - the issue is no longer res-integra, as the revenue have accepted that in case of bulk sale made by the appellant, without affixing MRP to the institutional customers and sale of rejected lot to other customer on as is where is basis the provisions of Standards of Weight & Measurements Act, 1976 or the Legal Metrology (Packaged Commodities) Rules, 2011, are not applicable and accordingly, the appellants have rightly assessed the duty under the provisions of Section 4 of the Act in case of clearance to institutional consumer in bulk sale packages not meant for retail sale. - Decided in favor of assessee.

Summary

Issues:
1. Assessment of duty under Section 4A of the Central Excise Act for bulk sale to Defence.
2. Interpretation of provisions of Notification No. 2/2006-CE (NT) and Notification No. 14/2008-CE (NT).
3. Application of Section 4 for clearance to institutional consumers in bulk sale packages.
4. Imposition of penalty under Rule 25 read with Section 11 AC of the Act.

Analysis:
1. The appellant, a manufacturer of malted food products, was involved in a dispute regarding the assessment of duty under Section 4A of the Central Excise Act for bulk sale to Defence. The revenue contended that goods supplied in bulk to Defence should be assessed under Section 4A, not Section 4, due to the absence of Maximum Retail Price (MRP) on the packages. The appellant argued that their goods were not meant for retail sale, as they were sold in bulk to institutional consumers, and thus, the duty was correctly assessed under Section 4. The Tribunal found in favor of the appellant, stating that the provisions of the Standards of Weight & Measurements Act and Legal Metrology Rules were not applicable in this case, and the duty was rightly assessed under Section 4 for bulk sale packages not intended for retail.

2. The Tribunal analyzed the interpretation of Notification No. 2/2006-CE (NT) and Notification No. 14/2008-CE (NT) in relation to the assessment of duty. The appellant argued that their goods, sold in bulk to institutional consumers, were not covered under these notifications as they were not meant for retail sale. The Tribunal agreed with the appellant's interpretation and held that the duty assessment under Section 4 was appropriate for such transactions, as the goods were not intended for retail sale and did not require MRP on the packaging.

3. The issue of applying Section 4 for clearance to institutional consumers in bulk sale packages was also addressed. The appellant relied on previous favorable decisions in their case for different periods, where the duty assessment under Section 4 was accepted by the revenue. The Tribunal considered these precedents and ruled in favor of the appellant, stating that the issue was settled and the duty assessment under Section 4 was appropriate for the period in question.

4. Lastly, the Tribunal examined the imposition of penalty under Rule 25 read with Section 11 AC of the Act. The appellant contested the penalty imposed by the adjudicating authority, citing previous decisions in their favor for similar periods. The Tribunal, considering the settled nature of the issue and the appellant's compliance with duty assessment under Section 4, set aside the impugned orders and allowed the appeals, entitling the appellant to consequential benefits in accordance with the law.