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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 ..... assessable value therein. The appellants cleared the goods on which MRP was printed and paid duty after determining the value under section 4A. The goods were cleared to industrial users and traders also. The packages bore the remark 'for industrial use'. 2. A show cause notice was served alleging that as per rule 34 of the Standards of Weights and Measures (Packaged Commodity) Rules 1977, (SWM Rules) the appellants are not required to print MRP as it is a raw material specially packed for exclusive use of any industry. Hence, the assessment of duty shall be under section 4 and not under section 4A. The Joint Commissioner vide his order in original dated 29th October 2004 set aside the demand on the ground that; (a) The adhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner has not given any finding on the non applicability of the ratio of the judgments of Tribunal of Supreme Court relied by Joint Commissioner and the fact that the appellants do not have any malafide intention. 4. Heard both the sides. The first question to be decided is whether Rule 34 of SWM Rules is applicable to the appellant's clearances or not. For ready reference provisions of Rule 34 are reproduced below: Rule 34. Exemption in respect of certain package (1) Nothing contained in these Rules shall be applied to any package containing a commodity if- (a) the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rators were packed in a package declaring the MRP on them and the MRP and the contract price were different. Assessee wanted to pay duty on the basis of MRP. However, the department contended that they have to pay duty on the basis of transaction value. The Apex Court held that payment of central excise duty on the basis of MRP would be appropriate. Similarly in the case of telephones supplied to DOT, MTNL and BSNL who purchased telephone instruments and provided the same to individual customers for their use but not by way of sale. In that case the Apex Court took the view that what was sold was a retail package and once it is a retail package, according to SWM Rules, the retail price has to be market, the assessment has to be done on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under to declare such a price." On the basis of these observations it was submitted that once the product is covered by Rule 34, it has to be held that none of the provisions of SWM Rules would be applicable and therefore the product cannot be assessed under Section 4A for the purpose of valuation. 6. We are unable to accept this proposition. As a general Rule, all packaged commodities are required to be printed with MRP and exceptions are specified in Rule 2 and Rule 34. From the observations in respect of telephone instruments and the refrigerators made by the Hon'ble Supreme Court, it becomes clear that once MRP is required to be affixed and it is affixed, the assessment has to be done under Section 4A only. Further, the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant would be the provision in the Rule itself that "if the marking on the package unambiguously indicates" this clause would clearly show that a manufacturer has a choice of making a claim for not printing MRP on the package or chose the above of printing MRP. If he makes a choice to take the benefit of Rule 34, he is bound to print on the package the words specified in the Rule and to show it to the Legal Metrology Department & to Central Excise Department that he is eligible for exception made under Rule 34 and he is not required to print MRP. We feel that the stand taken by the Revenue that Rule 34 can be compulsorily applied cannot be sustained. 7. The next issue is department has taken a view that the product is not meant for retai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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