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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 ..... f the Central Excise Act was not applicable. This contention, however, came to be rejected for the reasons stated in the impugned orders. 2.1 The essential particulars of the appeals are as tabulated below :- Appeal No. Name of the appellant (assessee) Description of goods Period of dispute Impugned order Duty demand E/1244/2004 'Sampre' Sugar confectionery 1-9-2000 to 22-7-2001 O-i-A No. 65/2004, dated 28-7-2004 Rs. 28,66,491/- E/1245/2004 'Sampre' -do- 7-5-2002 to 31-1-2003 O-i-A No. 66/2004, dated 28-7-2004 Rs. 16,42,849/- E/534-537/2005 'Sampre' -do- 1-3-2001 to 30-9-2003 O-i-A Nos. 212 to 215/2004, dated 28-12-2004 Rs. 2,22,335/- E/740/2005 'Sampre' -do- 1-3-2000 to 28-2-2001 O-i-A No. 205/2004, dated 21-12-2004 Rs. 3,00,213/- E/965/2005 'Roys' -do- 1-8-2003 to 31-3-2004 O-I-A No. 94/2005, dated 29-7-2005 Rs. 20,92,924/- E/1102/2005 'Prayagh' -do- 1-8-2002 to 30-11-2004 O-I-O No. 20/2005, dated 6-9-2005 Rs. 1,54,67,265/- E/131/2006 'Roys' -do- 15-10-2004 to 13-6-2005 O-I-A No. 118/2005, dated 28-10-2005 (No quantified demand. O-i-O rejecting the assessee's request for provisional assessment under Section 4 was uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orange" and "Googly Assorted". In respect of the first item, each pet jar contained 230 units (621 grams) or 314 units (942 grams). In respect of the second item, each pet jar contained 400 units (1200 grams). The price of each unit (piece) of both the above varieties was declared as 0.50 paise on the jar. E/740/2005 : In this case, the product "Cadburys Dairy Milk Eclairs" weighing 6 grams was twist-wrapped with printed laminated film and 167 such pieces weighing 1 Kg. were packed in a pet jar and 12 such pet jars were further packed in cardboard cartons and cleared to the depots of M/s. Cadbury India Ltd. The price of each piece was marked on the pet jar as Re. 1/- per piece. (B) Roys : E/965/2005 & E/280/2006 : Each piece of their products namely "Caram Eclairs" and "Choco Eclairs" weighing 5.5 grams approximately was twist-wrapped with printed laminated film and such pieces were packed into 825 gm. pet jars/220 gm. poly bags. Both on wrapper and on the pet jars/poly bags, MRP per unit was marked Re. 1/-. Both the products were manufactured as job workers of M/s. ITC Limited and cleared to the latter. E/131/2006 : Each piece of products namely "Eclairs" and " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the individual pieces contained in the pet jars/polybags (pouches) were separately packed and were capable of being sold in retail, the pet jars/polybags (pouches) were to be considered as retail packages attracting MRP provisions. It was observed that, at the stage when the individual pieces were packed by twist-wrapping with laminated film, a retail package emerged and the provisions of the SWM (PC) Rules regarding declaration of retail sale price were attracted and, consequently, the provisions of Section 4A of the Central Excise Act came to be applicable. The pet jars/polybags were held to be multi-piece packages under Rule 2(j) of the SWM (PC) Rules and that the individual pieces were intended for retail sale. The assessees' claim for exemption under Rule 34(b) was rejected by the authorities on the ground that such exemption was applicable only to packaged goods which were sold in weight or measure and not applicable to goods sold in numbers. According to the authorities, the individual pieces were generally sold in numbers in the retail market of ultimate consumers. In the result, the goods in question were held to be assessable to duty of excise in terms of Section 4A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 34(b) of the Rules will be available in respect of a multi-piece retail package if the total weight of all the pieces in the package does not exceed the prescribed limit as held by Kraftech Products (supra) and Urison (supra). (iii) In view of the finding of fact by the referral Bench in this case that the impugned poly packs and pet jars are multi-piece retail packages and the total weight of the pieces in such packages exceed 20 grams, the exemption under Rule 34(b) is not applicable and consequently, the assessment is required to be done applying provisions of Section 4A. 2. The Registry is directed to return the appeals to the referring Division Bench for passing the final order." 7. Heard both sides. The learned counsel for M/s. Roys Industries Ltd. pointed out that the view taken by the West Zonal Bench (Mumbai) of the Tribunal in the case of Swan Sweets v. CCE - 2006 (198) E.L.T. 565 on a set of facts similar to the facts of the present cases was upheld by the Supreme Court by its judgment dated 14-9-2010 reported in 2010 (259) E.L.T. 5 (S.C.) and, therefore, the said view was binding on this Tribunal by virtue of Article 141 of the Constitution of India. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale or not would depend on the manufacturer and his marketing pattern. In the present case, it was not in dispute that the jumbo packs were not intended to be sold to the ultimate consumer. The individual pieces of confectionary only were to be sold to the ultimate consumers. In this view, the jumbo packs were to be considered as wholesale packages. The learned counsel pointed out that an identical dispute was settled in favour of the assessee by this Tribunal in the case of Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. v. CCE - 2008 (226) E.L.T. 369 (Tri.-Chennai) and that the Civil Appeal filed by the Revenue against that decision was dismissed by the Apex Court vide 2008 (232) E.L.T. A107 (S.C.). It was also pointed out by the learned counsel that the Chennai Bench, in the cited case, relied on the decision rendered by the coordinate Bench (Mumbai) in the case of Swan Sweets Pvt. Ltd. The decision in Swan Sweets case was also affirmed by the Apex Court. In this scenario, the learned counsel urged that the view taken in the cases of Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. and Swan Sweets Pvt. Ltd. be followed in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods must be assessed to duty on the basis of MRP in terms of Section 4A. 10. 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. 11. On a close study of the decisions cited before us, we find (a) that the facts of the case of Swan Sweets Pvt. Ltd. are similar to the facts of the present cases and that, in the said case, a coordinate Bench of this Tribunal held pouches (polybags) of 500 grams and pet jars of 720 grams of sugar confectionary units to be wholesale packages and also held these packages to be within the exemption provided under Rule 34(b) of the SWM (PC) Rules; (b) that Civil Appeal No. 1290/2007 filed by the department against the Tribunal's decision in Swan Sweets case was dismissed by the Supreme Court vide 2010 (259) E.L.T. 5 (S.C.); (c) that, in the case of Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. - 2008 (226) E.L.T. 369, another coordinate Bench of this Tribunal found the facts of the case to be similar to those of the case of Swan Sweets Pvt. Ltd. and, accordingly, packets each containing 100 or more pieces of 'Eclairs' chocolates eac ..... 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