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2012 (6) TMI 561

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..... ncludes any person who or which puts, or causes to be put, any mark on ay packaged commodity, not produced, made or manufactured by him and the mark claims the commodity in the package to be commodity produced, made or manufactured by such persons. The appellants after import of the goods affixed the brand name of “Henkel CAC Pvt. Ltd.” on the imported package which gives the indication that the product in question may be manufactured by the appellant - as claim of the assessee that the goods in question are being sold by them to the industrial consumers and this fact is verifiable from the records that the burden lies on the appellant to establish before the lower authorities that the provisions of Chapter II of the PC Rules are not app .....

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..... and the Commissioner (Appeals) vide impugned order has upheld the assessment done by the Customs officers and rejected the appeal filed by the appellant. The present appeal is filed by the appellant against the impugned order-in-appeal. 3. The learned Counsel appearing for the appellant submitted that the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (PC Rules in short) specifically states that the provisions of Chapter II of PC Rules are applicable only to the packages intended for retail sale. He further submitted that the packages containing the product are meant only for industrial consumers, therefore, they are eligible for exemption under Rule 2A of the PC Rules. He submitted that the imported Hot Melt Adhesiv .....

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..... of CVD. 4. The learned A.R. appearing for the Revenue submitted that as per the definition of retail package imported packages are also covered under retail package definition and, therefore, PC Rules are applicable to the imported packages and under Rule 2A of the PC Rules, exemption is given to only those packages which are meant for industrial consumers or institutional consumers and as per explanation the Rule 2A of the PC Rules, industrial consumers/institutional consumers are those consumers who buy a packaged commodity directly from the manufacturers/packers for using the product in the industrial production or in the service industry. Since the appellant do not fall under the category of manufacturer or packers they are not enti .....

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..... or using the product in their industry for production etc. 5.1 From the Rule 2A, goods sold to institutional consumers or industrial consumers are exempted from application of PC Rules. It is the contention of the department that the appellant is not covered under the definition of industrial consumers/institutional consumers whereas the appellant contended that they are covered under the category of manufacturer and hence they are eligible for the benefit for the goods sold to institutional consumer/industrial consumer. We also find that the manufacturer is defined under Rule 2(h) of the PC Rules which reads as under:- (h) manufacture in relation to any commodity in packaged form, means a person who, or a Firm or a Hindu .....

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..... ons of Chapter II of the PC Rules are not applicable to the packaged commodity imported by them. We are, therefore, of the view that since the appellant claims that the entire goods imported by them are being sold to the industrial consumers and also they are putting the mark Henkel CAC Pvt. Ltd. on the imported packages, they should get a reasonable opportunity of producing evidence before the original authority to prove their claim that they are covered under exemption from MRP based assessment under Rule 2A of PC Rules. We, therefore, set aside the impugned order and remand the matter back to the original authority for deciding the matter afresh after giving an opportunity of being heard to the appellants and to produce the evidence in .....

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