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TMI Blog2013 (6) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 20 grams, the exemption under Rule 34(b) is not available and consequently the goods must be assessed to duty on the basis of MRP in terms of Section 4A. Placed as we are between the split verdict of the Larger Bench and the judgments of the Apex Court, we have got to identify the binding case law. The majority decision of the Larger Bench in the case of Roys Industries [2010 (9) TMI 257 - CESTAT, BANGALORE] cannot be followed as a precedent inasmuch as the binding judgments of the Apex Court in the cases of Swan Sweets Pvt. Ltd. [2010 (9) TMI 10 - SUPREME COURT] and Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. exist in favour of the assessees. Decided in favor of assessee. - E/1244-1245/2004, 534-537,740, 965, 1102-1103/2005, 131 and 280/2006 - 209-220/2012 - Dated:- 19-1-2012 - Shri P.G. Chacko and B.S.V. Murthy, JJ. Shri B.V. Kumar, Advocate, for the Appellant. Shri Ganesh Haavanur, Additional Commissioner (AR), for the Respondent. ORDER In all the appeals, barring E/1103/2005, the challenge is against assessment of the goods under Section 4A of the Central Excise Act. The appellant in Appeal No. E/1103/2005 is aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely Sampre, Roys and Prayagh are manufacturing sugar confectionery, on job work basis, out of raw materials supplied by the principal manufacturers, M/s. Cadburry India Limited in respect of Sampre and Roys, and M/s. ITC Limited in respect of Prayagh. After filing price declarations with the proper officers of Central Excise, they determined the assessable value of the goods in terms of Ujagar Prints formula and paid duty accordingly. It was this assessment under Section 4 of the Central Excise Act that was questioned by the department which required the assessees to determine the assessable value under Section 4A of the Act and pay differential duty. This dispute has ultimately reached us. Of course, it is not in dispute that the subject goods were notified under Section 4A ibid for MRP-based assessment. 4. In order to ascertain the correct method of assessment to be adopted by the assessees, it is necessary to understand their pattern of clearance of the goods, which is as stated below assessee-wise :- (A) Sampre : E/1244 1245/2004 : Confectionery items twist-wrapped in laminated film and packed in pet jars were cleared to M/s. Cadburry India Ltd. The net weight w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (180 units) and Re. 1/- per unit were marked respectively on the labels of the pet jars of Eclairs and Choco Eclairs . Rs. 50/- (100 units + 5 free) and Rs. 75/- (75 units) were marked on the poly bags of Eclairs and Choco Eclairs respectively. Both the products were cleared to M/s. ITC Limited. (c) Prayagh : E/1102/2005 : Sugar confectionery in four different flavours viz. mango, banana, pineapple and orange were manufactured as job workers of M/s. ITC Limited and cleared to them under the brand name Candyman . The relevant particulars are as shown below :- 1. Mango/Banana : 12 kg. Each carton contains 12 No. of jars each weighing at 1 kg. containing 286 No. of candies with MRP printed as 50 NP per unit. 2. Mango/Banana : 16 kg. Each carton contains 32 No. of poly bags, each containing 500 gms. containing 143 Nos. of candies with MRP printed as 50 NP per unit. 3. Mango/Banana : 6 kg. Each carton contains 12 No. of jar. Each jar contains 500 gms. and each jar contains 143 No. of candies with MRP printed as 50 NP per unit. 4. Mango/Banana/Pineapple/ Orange : 18 kg. Each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals E/965/2005 and E/280/2006 of M/s. Roys Industries Ltd. [2006 (201) E.L.T. 609 (Tri.-Bang.).], this Bench had referred the following questions to a Larger Bench for its decision : (i) Whether the Pet Jars/Poly Bags containing individual pieces of Eclairs weighing less than 5.5 gms. each should be considered as a wholesale package as contended by the appellants and agreed by the Mumbai Bench or whether they should be considered as multi-piece package as per the views of this bench? (ii) Whether the exemption under Rule 34(b) of Standards of Weights Measures (Packaged Commodities) Rules, 1977 available for individual pieces is relevant for deciding if the assessment has to be done under Section 4 or 4A of the Central Excise Act? (iii) Whether the assessment of the impugned products should be done under Section 4 or Section 4A of the Central Excise Act? A learned Member of the Larger Bench held, in view of the Supreme Court s order dated 15-9-2008 in Civil Appeal No. 7559 of 2008 [D.19192 of 2008] (Central Arecanut and Cocoa Marketing and Processing Co-op. Ltd. [2008 (232) E.L.T. A107 (S.C.)]) and the Court s order dated 14-9-2010 in Civil Appeal No. 1290 of 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es case was not good law in view of the Apex Court s judgment in Swan Sweets case. It was further pointed out that the Larger Bench while passing its order dated 14-9-2010 did not consider the Hon ble Supreme Court s order in CC v. Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. [2008 (232) E.L.T. A107 (S.C.)]. In any case, in a conflict between a decision of this Tribunal and one of the Supreme Court, the latter would prevail. In this context, the counsel referred to Mira Silk Mills v. CCE - 2003 (153) E.L.T. 686 (Tri.-LB). The learned counsel also referred to some of the provisions of SMW (PC) Rules, which were said to be relevant to the issue under consideration. The definitions of combination package [Rule 2(c)], group package [Rule 2(g)], multi-piece package [Rule 2(j)], retail package [Rule 2(p)], retail sale [Rule 2(q)], retail sale price [Rule 2(r)] and wholesale package [Rule 2(x)] were particularly referred to by the counsel who argued that, while a wholesale package was not intended for retail sale, other packages were intended for retail sale. It was claimed that the pet jars/polybags (pouches) were not intended for retail sale and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... net weight of 20 grams or less was sold by weight, then none of the provisions of the SMW (PC) Rules would apply and, consequently, any requirement to affix MRP even on the individual pieces of confectionary was ruled out. 8. The learned Additional Commissioner (AR) submitted that, with the decision of the Tribunal s Larger Bench on the issues referred from the case of M/s. Roys Industries Ltd., the question whether the assessment in these cases was required to be made in terms of Section 4 or 4A of the Central Excise Act stood settled in favour of the Revenue and therefore the demands of duty were only liable to be upheld. It was submitted that the decision of the Larger Bench was not challenged by the assessee (M/s. Roys Industries Ltd.) and the same was binding on them. It was further pointed out that the Larger Bench had distinguished the ratio of the decision in Swan Sweets case and had correctly applied the ratio of the decision in CCE, Mumbai v. Urison Cosmetics Ltd. - 2006 (198) E.L.T. 508 (Tri.-LB), to the facts of the case on hand. In this manner, the learned Additional Commissioner (AR) endeavoured to defend the orders impugned in the assessee s appeals. 9. We have g ..... 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