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TMI Blog2013 (6) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 34 of SWM Rules. Just because the appellant has mentioned "exclusively for industrial use" and "not to be sold in loose", Rule 34 cannot be compulsorily applied. The definition of 'Retail Sale" under Rule 2 makes it quite clear that the retail sale definition is vide enough to cover the transaction in question and therefore unless an assessee claims exemption from printing MRP under Rule 34 of SWM Rules, the MRP is required to be printed and assessable value has to be determined under Section 4A of Central Excise Act, 1944. Thus appellant has made out a case that goods are required to be assessed and value has to be determined as per the provisions of Section 4A of Central Excise Act, 1944 keeping the MRP as the basis. - E /259/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail. Therefore, even if the products are sold to industrial customer, the goods once notified under rule 4A shall be assessed to duty under section 4A. (i) Jayanti Food Processing Pvt. Ltd. 2002 (141) ELT 162 (T) (ii) ITEL Industries Pvt. Ltd. Vs. CCE, Calicut 2004 (163) ELT 219 (T) upheld by Supreme Court as reported in 2007 (215) ELT 327 (SC) 3. The department appealed against the said order in original of Commissioner of Central Excise (Appeals) who set aside the order of the Joint Commissioner on the ground that; (a) The Products manufactured by the appellants are raw materials and same are packed and packages contain the words "for exclusive user of industry". Therefore, as per rule 34, the appellants are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared to IOCL, HPCL etc. who used it for packaging and to other manufacturers to slit it repack and sell it. It is also an admitted fact that on the package it has been printed "for industrial use" and "not to be sold loose". On the basis of this printing on the packages and on the basis of end use, the department has taken a view that the appellant is covered by Rule 34 and therefore assessment has to be done after arriving at value on the basis of provisions of Section 4 and not Section 4A of Central Excise Act, 1944 which provides for arriving at assessable value on the basis of MRP. The ld. counsel relied upon the decision in the case of Jayanti Food Processing Pvt. Ltd. - 2007 (215) ELT 327 (S.C.). In fact, the ld. A.R. on behalf of Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he was entitled to exemption under Rule 34 of SWM Rules. This was not accepted and the Revenue took the view that valuation would have to be under Section 4A of the Central Excise Act, 1944. In that case Apex Court held that assessment has to be under Section 4 and not under 4A and the ld. A.R. would rely upon the following observations in para 12 "the plain language of Section 4A(1) unambiguously declares that for its application there has to be the "requirement" under the SWM Act or the Rules made there under or any other law to declare the MRP on the package. If there is no such requirement under the Act and the Rules, there would be no question of application of Section 4A. Thus if the appellant is successful in showing that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be noted that according to Rule 34 of SWM Rules, assessee need not affix the MRP only when it is clearly marked on the package that the goods have been specially packed for the exclusive use of an industry as a raw material or for the purpose of servicing any industry. Therefore, to avoid the requirement of printing MRP, a manufacturer is required to indicate on the package itself that the goods are made exclusively for industrial use as a raw material. Just because the appellant has mentioned "exclusively for industrial use" and "not to be sold in loose", Rule 34 cannot be compulsorily applied. The question arises whether Enforcing Department can say that the words "industrial use" are found and therefore it is sufficient to take out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should actually be sold in retail. The definition of 'Retail Sale" under Rule 2 specifically covers "distribution disposal" other than through sale also. The amplitude and coverage of the Packaged Commodities Rules extend to goods packed for disposal other than through sale also." The definition of the retail sale is reproduced as under: "Retail Sale", in relation to a commodity, means 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 rule makes it quite clear that the retail sale definition is vide enough to cover the transaction in question and therefore unless an assessee claims exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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