2023 (10) TMI 1438 - AT - Central Excise

Valuation of sugar confectionery falling under chapter heading under 1704.90 and 1804.90 being manufactured by the appellant - individual piece weighing less than 10 grams per piece and the same are packed in 500 grams - whether such product is liable to be valued on MRP basis under Section 4A or under Section 4 of Central Excise Act, 1944? - HELD THAT - Under the identical facts in the appellant s own case SWAN SWEETS PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAJKOT 2006 (1) TMI 269 - CESTAT, MUMBAI it was held that wholesale pack of 500 grams to 1 kg is not retail pack and therefore taking the weight of individual piece of confectionery which is less than 10 grams will not be governed under Section 4A. The issue is no longer res- integra, therefore, the impugned order is not sustainable, hence, the same is set aside - Appeal allowed.

Summary

Issues Involved:
Valuation of sugar confectionery under Central Excise Act, 1944 - Whether to be valued on MRP basis under Section 4A or under Section 4.

Detailed Analysis:

Issue 1: Valuation of Sugar Confectionery
The primary issue in this case pertains to the valuation of sugar confectionery falling under specific chapter headings when individual pieces weigh less than 10 grams and are packed in 500 grams packs. The contention revolves around whether such products should be valued based on Maximum Retail Price (MRP) under Section 4A or under Section 4 of the Central Excise Act, 1944.

Analysis:
The appellant argued that previous judgments, including one by the Hon'ble Supreme Court and another by the Tribunal, supported their position that such goods should be valued under Section 4 and not Section 4A. The Tribunal's decision in the case of Makson Pharmaceuticals India Pvt. Ltd. also aligned with this interpretation. The Tribunal noted that individual confectionery items weighing less than 10 grams do not fall under the ambit of Section 4A, as confirmed by the Supreme Court's ruling. The relevant provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 were cited to support this interpretation.

Issue 2: Application of Section 11D
The second issue involved the confirmation of demand under Section 11D by the adjudicating authority. The appellant had raised invoices showing excise duty under Section 4A, but the differential duty demand between Section 4 and Section 4A was not upheld. Consequently, the demand was confirmed under Section 11D.

Analysis:
Upon reviewing the facts, it was established that the appellant had issued credit notes to customers for the differential duty amount, indicating that the excess duty collected was not retained by the assessee. The Tribunal determined that Section 11D, which applies when duty collected is not deposited with the government, was not applicable in this scenario. The duty was paid under protest, and subsequent issuance of credit notes indicated that no duty was collected and retained by the assessee.

Conclusion:
Based on the precedents set by the Hon'ble Supreme Court and the Tribunal, the Tribunal concluded that the valuation of sugar confectionery in this case should be governed by Section 4 of the Central Excise Act, 1944. Additionally, the demand confirmed under Section 11D was deemed unsustainable due to the specific circumstances of the case. As a result, the impugned order was set aside, and both appeals were allowed in favor of the appellant.