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TMI Blog2009 (4) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... not involved in all such cases. In accordance with the provision of Standards of Weights and Measures Act, 1976, there is no need to print maximum retail price on the fans so sold, because the fans will remain the property of the department of the government which purchases them. Coming to such a conclusion, the show cause notice was issued to the respondent on the ground that they have contravened the provision of Section 4 by resorting to valuation under Section 4A. Inasmuch as DGS D insistence upon assessee to adopt Section 4A valuation is not viable in the provisions of Central Excise law. Hence, it was concluded that the, assessee was liable to pay differential duty under the provisions of Section 11A of Central Excise Act, 1944. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Weights and measures (Packaged Commodities) Rules, 1977 provides that Chapter II (Provisions applicable to packages intends for retail sale) shall not apply to packaged commodities meant for industrial consumers or institutional consumers. Explanation (a) of this Rule provides that institutional consumer means those consumers who buy packaged commodities directly from the manufacturers/packers for service industry like transportation, railways, airways, hotel or any other similar service industry. Hence, the government department providing service to the people of India, is an institutional consumer. On both the counts i.e., impugned sale is not a retail sale and the supplies made is for institutional consumer, the provisions of this Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unjustified additional profit margin which otherwise has gone to wholesaler or retailer under Section 4A. (v) In view of the above, since the assessee is selling the goods at lower rate directly to the consumer under rate contract through DGS D, the assessees are selling the goods as per assessable value under Section 4 that is why the abatement is not eligible and the duty should be paid as per Section 4 of Central Excise Act, 1944. (vi) In view of the above, the valuation for the purpose of determining the assessable value of electrical fans supplied by the assessees to the government departments under DGS D rate contract should be done under Section 4 of Central Excise Act, 1944. 4. The learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licability of the provisions of the Rule 2A of the Standards and Weights of Measures Act and Rules made thereunder clearly. We may reproduce the said findings. 6. Therefore, the question is whether the supply to the various government departments is being done by the appellant in bulk or in retail. The Hon ble CESTAT in the case of Purisons Engineers Pvt. Ltd. v. CCE - 2004 (164) E.L.T. 417 (Tri.-Del.) held even when supplies are made to different government departments by way of DGS D rate contract, the sale is in retail and hence, assessment under Section 4A is valid. They observed that DGS D contract is only for rate and other conditions regarding sale, in this case, they distinguished their earlier decision the case of Bharati Sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egory which was excluded by way of example by the CBEC Circular) was not a retail package and the sale was not a retail sale as per the definitions of the SWM Act. The original authority held that the sale is not a retail sale because government departments are neither individual nor group of individual consumers. The Hon ble CESTAT judgment in the Purisons case cited earlier clearly over rides this understanding. 7. The second leg of the original order is that government departments being-institutional consumers as per Rule 2A of Chapter II of the Rules are excluded from the operation of Chapter II. He does this on the understanding that Government departments are covered by the definition of service industry. It will be very difficult t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the government of Andhra Pradesh i.e., the Controller of Legal Metrology Department, on a specific request from the respondent herein informed them that supplies to DGS D will be covered under Standards and Weights of Measures Act, which is reproduced below : GOVERNMENT OF ANDHRA PRADESH From: To: The Controller, M/s. Hyderabad Engineering Legal Metrology, Industries, Andhra Pradesh, Balanagar Township, Hyderabad. Hyderabad -500 037. Letter : 17797/T2/04, dated : 25-11-2004 Sir, Sub: Legal Metrology Department - Printing of MRP on the packing boxes - reg. Ref : Your Letter No; SA/ADM/, dated 24-11-2004. M/s. Hyder ..... X X X X Extracts X X X X X X X X Extracts X X X X
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