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TMI Blog2010 (12) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... to wholesale supply. But before arriving at any finding about the wholesale supply or bulk supply in a case where a dispute is raised that the nature of supply does not disclose to be the bulk supply, but it is a retail supply, it is always necessary for the Adjudicating Authority to analyse the materials placed on record in that regard by both the parties and to arrive at a appropriate finding as to whether the nature of supply discloses to be of wholesale nature or retail one - matter remanded back. - E/620 of 2005 - 876/2010-EX(PB) - Dated:- 2-12-2010 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri Jeevesh Mehta, Advocate for the Appellants. Shri S.R. Meena, Authorized Representative (DR) for the Respondent. Per. Shri Justice R.M.S. Khandeparkar :- Heard the learned advocate for the appellants and DR for the respondent. This appeal arises from order dated4th November 2004passed by Commissioner (Appeals), Kolkata, whereby the appeal filed by the appellants against the order of the Adjudicating Authority has been dismissed. The Assistant Commissioner at Kolkata by his order dated 31st March 2004 had held that the electric fans sold in bulk by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards of Weights and Measures (Packaged Commodities) Rules, 1977, the supply by of the goods by the appellants was essentially on retail basis and the contract with the DGS D was a rate contract and not a contract for supply on wholesale basis and, therefore, the provisions of Section 4A of the said Act were clearly attracted for the purpose of assessment of the goods. Referring to the decision in Jayanti Food Processing (P) Ltd. he submitted that it has been clearly held therein that the nature of sale is not relevant and what is relevant for the purpose of deciding the applicability of Section 4A are the criterias laid down by the Hon ble Supreme Court in para 2 of the said decision and having so applied to the facts of the case, the order passed by the lower authorities cannot be sustained. He further submitted that this position is also clear from the said Circular dated28th February 2002. It is his further submission that they were required to print MRP on the package of ceiling fans in terms of The Standards of Weights and Measures Act and once such requirement is established the assessment of goods has necessarily to be under Section 4A of the said Act. The supply made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be in bulk and that, therefore, provisions of Section 4A would not apply but the assessment had necessarily to be under Section 4 of the said Act held that we have already clarified above that it is not the nature of sale which is relevant factor for application of Section 4A but the applicability would depend upon five factors which we have enumerated in para 2 above. In para 2 of the judgment of the Apex Court, it was held that :- In short after introduction of Section 4A, the nature of sale lost its relevancy in the sense that the valuation did not depend upon the factor whether it was a wholesale or sale in bulk or a retail sale. The whole section covered the goods which were packaged and sold as such with the rider that such package had to have a retail sale price thereupon under the provisions of SWM Act, Rules made thereunder or under any other law. Thus, viewed from the plain language of the Section, where the goods are excisable goods and are packaged and further such packages are required to mention the price thereof under the SWM Act, Rules made thereunder or under any other law and further such goods are specified by the Central Government by notification or Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f retail sale, in relation to a commodity, was that the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer. The term retail package was defined under Section 2 (p) to mean a package containing any commodity which is produced, distributed, displayed, delivered or stored for sale through retail sales, agencies or other instrumentalities for consumption by an individual or a group of individuals. The expression retail sale price was defined under Section 2 (r) to mean the maximum price at which the commodity in packaged form may be sold to the ultimate consumer and where such price is mentioned on package, there shall be printed on the packages the words maximum or max. retail price, inclusive of all taxes or in the form of MRP Rs. - . inclusive of all taxes. The explanation to the said provision stated that for the purpose of the clause maximum price in relation to any commodity in packaged form shall include all taxes, local or otherwise freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Control) Order, 1955 made under section 3 of the Essential Commodities Act, 1955 (10 of 1955). (f) Agricultural farm produces in packages of above 50 kg. 12. Taking into consideration the decision of the Apex Court in Jayanti Food Processing (P) Ltd. and the provisions of law referred to above it is apparent that in cases where the provisions of Chapter 2 of the said rules are attracted the question of invoking Section 4 of the said Act cannot arise. In that case, the valuation and assessment has to be in terms of Section 4A. However, in cases where the provisions of chapter 2 and in particular in relation to the requirement of declaration of MRP on the packages is not applicable or attracted, then the valuation and assessment will have to be in terms of Section 4 of the said Act. At the same time, in terms of the provisions of law, the wholesale package need not necessarily contain the retail packages without any MRP being printed. On the contrary, if we read the said definition, it specifically refers to the retail packages also. It specifies that when number of retail packages are brought together and they are supplied it would result in sale of wholesale package. 13. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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