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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 ..... ates that the applicants are manufacturing sugar confectionary, which are cleared in multi-piece packages (jars/pouches) containing individual sugar confectionary each containing less than 10 grams. The applicants have paid duty on the impugned goods under Section 4A of the Central Excise Act, 1944, based on the MRP. It is the contention of the department that the jars/pouches are wholesale packages and hence the duty demand has been made on the applicants under Section 4 of the Central Excise Act, 1944. 3. Ld. Advocate relies on the decision of the Larger Bench of the Tribunal in the case of Roys Industries Ltd. v. CCE, Hyderabad - 2010 (259) E.L.T. 387 (Tri.-LB), which he says has been passed relying on the decision of the Larger Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CCE, Rajkot, Gujarat v. Makson Confectionery Pvt. Ltd. - 2010 (259) E.L.T. 6 (S.C.). He justifies the impugned order and opposes the prayer for waiver of pre-deposit stating that the impugned goods sold in jars/pouches cannot be considered as retail packages as observed by the adjudicating Commissioner. 5. Ld. Advocate Shri K.S. Venkatagiri in reply states that no evidence has been brought forward by the department to establish that the impugned jars/pouches are sold in wholesale. On the other hand, the applicants produced letters/affidavits from the sellers of these jars/pouches to the effect that these are sold in retail. He also states that the applicants intended these to be sold in retail and that is why they have printed the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Larger Bench decision in the case of Roys Industries Ltd. (supra) has clearly noted that the SWM (Package Commodities) Rules, 1977 were framed to deal with commodities in the packaged form which are sold, or which are intended to be sold, or which are likely to be sold in retail. We reproduce below the relevant extracts of the Larger Bench decision in the case of Roys Industries Ltd. (supra) :- "22. Whether a particular package is a retail package or a wholesale package is a question of fact to be decided in each case applying the relevant definition. In the case of Swan Sweets (supra), the Mumbai Bench held the packages in that case to be wholesale packages. One of the considerations that weighed with the Bench was that the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 apply to multi-piece packages. Applying the ratio of these decisions to a case where the weight of multi-piece package is above the exempted weight limit of 20 gms, the MRP based valuation would apply. 25. Thus while the ratio of Swan Sweets (supra) is applicable to sale of wholesale package, the ratio of Kraftech Products (supra) and Urison (supra) would apply to sale of multi-piece retail packages. If the total weight of a multi-piece retail package is more than 20 gms as in this case, the exemption under Rule 34 would not be applicable and consequently, MRP based v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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