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TMI Blog2011 (1) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... department has not produced any evidence to establish the fact that the impugned packages are wholesale packages - Decided in the favour of assessee - E/637/2010 - 36/2011 - Dated:- 24-1-2011 - Ms. Jyoti Balasundaram, Dr. Chittaranjan Satapathy, JJ. REPRESENTED BY : Shri K.S. Venkatagiri, Advocate, for the Appellant. Shri V.V. Hariharan, JCDR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. Heard both sides. 2. Shri K.S. Venkatagiri, ld. Advocate appearing for the applicants states that the impugned order has been passed in respect of five Show Cause Notices confirming a duty demand of Rs. 83,28,889/- and a penalty of equal amount. He states that the applicants are manufacturing sugar confectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the cases of Swan Sweets Pvt. Ltd. v. CCE, Rajkot - 2006 (198) E.L.T. 565 (Tri.-Mum.) and Central Arecanut Cocoa Marketing Processing Co-op. Ltd. - 2008 (226) E.L.T. 369 (Tri.-Chennai), holding that Section 4 is applicable for valuation and assessment of similar goods sold in jars/pouches as those are wholesale packages. He also states that the decision of the Tribunal in Central Arecanut Cocoa Marketing Processing Co-op. Ltd. (supra) which followed the decision of Swan Sweets Pvt. Ltd. (supra) has been upheld by the Hon ble Supreme Court as reported in 2008 (232) E.L.T. A107 (S.C.). He also relies on the decision of the Hon ble Supreme Court in the case of CCE, Rajkot, Gujarat v. Makson Confectionery Pvt. Ltd. - 2010 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The decision of the Larger Bench of the Tribunal in the case of Urison Cosmetics Ltd. (supra) as well as the decision of the Hon ble Supreme Court in the case of Kraftech Products (supra) both require multi-piece retail packages having a weight of more than 20 grams to be assessed under Section 4A. The Larger Bench decision in the case of Roys Industries Ltd. (supra) also clearly notes that it was the factual finding in the case of Swan Sweets Pvt. Ltd. (supra) that the packages were wholesale packages in that case whereas the finding of the fact by the Bangalore Bench in the case of Roys Industries Ltd. (supra) was that the packages were multi-piece retail packages. The Larger Bench decision in the case of Roys Industries Ltd. (supra) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be sold .., or (iii) Which are likely to be sold .. The finding of the referral Bench that the impugned packages in this case are sold in retail is, therefore, sound as also the finding that the poly packs and pet jars are multi-piece packages. 24. The Larger Bench in CCE, Mumbai v. Urison Cosmetics Ltd. - 2006 (198) E.L.T. 508 (Tri.-LB) and subsequently, the Hon ble Supreme Court in Kraftech Products (supra) affirming the view of the Larger Bench have held that if the total weight of all the pieces in the case of multi-piece package does not exceed the limits prescribed such packages will be exempt from the requirement of the MRP based valuation rejecting the contention of the department that weight limits do not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be done applying provisions of Section 4A. 7. In the present case, the department has not produced any evidence to establish the fact that the impugned packages are wholesale packages. On the other hand, the applicants have claimed that the impugned packages were in the form, of jars/pouches intended to be sold in retail and they have also produced evidence from the sellers of the goods that these were indeed sold in retail. Hence, we are prima facie satisfied that the ratio of the Larger Bench decision in the case of Roys Industries Ltd. (supra) is applicable to the facts of the present case and therefore, following the ratio of the said decision, we waive the requirement of pre-deposit during the pendency of the appeals. (Operative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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