2019 (2) TMI 848 - AT - Central Excise

Method of Valuation - section 4 or 4A of CEA - manufacture of ice creams of various flavours in different quantities and with different brand names - Sale to hotels/ parlours/ caterers in 50 ml & 100 ml packs but packed differently without any RSP - Held that - The assertion of the assessee is that these 50 ml and 100 ml packs are different from those sold to individual customers and are not meant for sale but meant for use in hotels/ caterers as a part of food package which they sell. There is nothing on record to show that these 50 ml & 100 ml packs are printed with MRP and are meant for sale. There is no reason to suspect that the 50 ml and 100 ml packs are not different from packs of similar sizes meant for sale - valuation rightly done u/s 5 of CEA - Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Application of MRP based levy of Central Excise duty under Sec.4A of Central Excise Act, 1944.
2. Assessment under Sec.4 for ice creams sold to hotels, parlours, and caterers.
3. Imposition of penalties and invoking the extended period.

Analysis:
1. The appeal was filed by the revenue against the Order-in-Original regarding the application of MRP based levy of Central Excise duty under Sec.4A. The dispute arose from the clearance of ice creams to a company, subsequently sold to hotels, parlours, and caterers. The Commissioner held that Sec.4A applies to goods sold in packaged form with a printed retail sale price, which was not the case for the ice creams in question. The Commissioner relied on a Supreme Court judgment and a CBEC circular to drop the demands, which was upheld in the appellate tribunal.

2. The issue of assessment under Sec.4 for ice creams sold to hotels, parlours, and caterers was raised. The revenue contended that these sales should also fall under Sec.4A, while the assessee argued that Sec.4 applied as there was no retail sale price on the packs. The tribunal found that the packs were not meant for retail sale but for use in food packages by hotels and caterers. The Commissioner's decision to drop the demands was upheld based on the lack of retail sale price on the packs, in line with the Supreme Court judgment and CBEC circular.

3. The imposition of penalties and invoking the extended period was also considered. The tribunal reviewed the arguments from both sides and found that the packs in question were not intended for retail sale, supporting the Commissioner's decision to drop the demands. The tribunal upheld the impugned order based on the legal interpretations provided by the Supreme Court judgment and the CBEC circular, which were binding on the Commissioner. Consequently, the appeal was rejected, affirming the decision of the Commissioner.

This detailed analysis of the judgment highlights the key issues addressed by the appellate tribunal regarding the application of Central Excise duty and the assessment of ice creams sold to various entities, along with the decision-making process based on legal interpretations and precedents.