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TMI Blog2010 (4) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue. The respondent was clearing baby power (50 grams) to M/s. Nestle (India) Ltd., for free distribution by the latter with their product 'Cerelac 400 grams'. They paid duty on such clearance as per the transaction value declared by them. According to the department, the product, classifiable under SH 3304.00 and having been notified under Section 4A of the Central Excise Act, should have been assessed to duty under the said provision of law. On this basis, a show-cause notice was issued for recovery of differential duty (difference between the MRP-based duty determined after abatement in terms of Section 4A and the duty paid by the assessee in terms of Section 4). The demand was con tested by the assessee. In adjudication of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han - 2007 (215) E.L.T. 327 (S.C.) by pointing out that no MRP was affixed on the package considered by the apex court unlike in the instant case. The ld. Counsel for the respondent submits that the MRP printed on the package was struck out and, therefore, the goods were cleared without display of MRP thereon. On this basis, it is submitted that, by virtue of Rule 34(a) of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977, the subject goods was exempt from the requirement of any MRP having to be affixed on the package and, consequently, it fell outside the purview of Section 4A of the Central Excise Act. The ld. Counsel has further pointed out that Order-in-appeal Nos. 819-821/SRT/2002, dated 6-9-2002, which was relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a free gift to ultimate consumers. The argument was accepted by the Apex Court. 6. In the instant case, admittedly, the baby powder was sold by the assessee under an agreed price to Nestle (India) Ltd., who, in turn, distributed the same as free gift along with their own product (Cerelac 400 Gr.) to their customers. Though MRP was printed on the package, it was scored off so that, effectually, the clearance of the goods was without display of any MRP. Again, admittedly, the clearance by the assessee was made to an industry (Nestle) by way of servicing the industry by making it possible for them to supply the item as free gift to their own customers. This factual situation squarely attracted Rule 34 (a) and consequently the baby powder ..... X X X X Extracts X X X X X X X X Extracts X X X X
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