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TMI Blog2013 (9) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... “use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry” - Moreover under Rule 34(a) of SWM (PC) Rules, for exemption from the requirement of printing MRP - “the marking on the package must unambiguously indicated that it had been specifically packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry”. - The provisions of Section 4A were attracted to the case and duty was payable on the value determined u/s 4A Jayanti Food Processing Pvt. Ltd. & Others v. Commissioner of Central Excise, Rajasthan & Others [2007 (8) TMI 3 - Supreme Court] - The plain language of Section 4A(1) unambiguously declared that for its application there had to be the requirement under the SWM Act or the Rules made thereunder or any other law to declare the MRP on the package - If there was no such requirement under the Act on the Rules, there would be no question of application of Section 4A - Thus if the appellant was successful in showing that there was no requirement under the SWM Act or the Rules made thereunder for declaration of MRP on the package, then there would be no question of applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Rules, 1944 and imposition of penalty on the appellant under Rule 173Q(1) of the Central Excise Rules, 1944 were issued. The show cause notices were adjudicated by the Deputy Commissioner, Central Excise, Pune vide order-in-original No. PNI/C.EX. 150/99, dated 22-10-1999 by which the duty demand of Rs. 13,58,718/- was confirmed and penalty of Rs. 13,000/- was imposed on the appellant under Rule 173Q(1). On appeal, the Commissioner (Appeals) upheld the order-in-original vide order-in-appeal No. PI/440/05 dated 13-11-2005. Against this order, this appeal has been filed. 2. Heard both the sides. 2.1 Shri M.P. Baxi, Advocate, the learned Counsel for the appellant, pleaded that the "Cadbury Gold" and "Cadbury 5 Star" Chocolates were being cleared to job worker's premises in the bigger cardboard packings called 'Outers' for the purpose of repacking into assortment packs called "Celebrations", that in respect of clearances to the job workers, the unit of assessment was the cardboard pack, not the individually packed 'Cadbury Gold' and '5 Star' Chocolates, that the cardboard packings were wholesale packings in terms of Rule 2(x) of the Standards of Weights and Measures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the provisions of Section 4A are applicable; (d) the judgment of Hon'ble Supreme Court in the case of M/s. Jayanti Food Processing Pvt. Ltd. (supra) is not applicable to the facts of this case; and (e) the goods, in question, are not covered by Rule 29 read with Rule 2(x) under Rule 34 of the SWM (PC) Rules. 3. We have carefully considered the submissions from both the sides and perused the records. The undisputed facts are that - (a) during the period of dispute, chocolates were covered by the notification issued by the Government under Section 4A(1) of the Central Excise Act, 1944; (b) the weight of the retail pack i.e. the pack in which the chocolates were being sold to ultimate consumers was more than 5 gms. - 44 gms. In case of "Cadbury Gold" and 20 gms in case of "Cadbury 5 Star" and, hence, the exemption from printing MRP under Rule 34(b) of SWM (PC) Rules was not applicable and in fact, the packages of "5 Star" and "Cadbury Gold" chocolates were having MRP printed on them; (c) The "5 Star" and "Cadbury Gold" chocolates with MRP printed on each individual packs were being cleared in bigger package called "Outers"; and (d) there were no marking, on outers to indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Rules made thereunder to declare such a price". 4.1 Thus, the condition for application of Section 4A in respect of some goods, if the same are notified under Section 4A(1), is the requirement of printing of MRP on the package. The "package" obviously refers to retail package in which the commodity sold to consumers. Whether the assessee sells the retail packs of the commodity as such or whether for convenience of distribution, he sells the retail packs, further packed in wholesale packs and whether such wholesale packs are exempt from the provisions of SWM Act and the Rules made thereunder is of no relevance. Section 4A will be attracted once in respect of the packages meant for retail sale for individual or any other consumer, there is requirement of affixing MRP on the package under SWM Act or the rules made thereunder or under any other law. It is in accordance with this principle that the Tribunal in the case of Central Arecanut & Cocoa Marketing & Processing Co-op. Ltd. (AMPCO) v. CCE, Mangalore reported in 2008 (226) E.L.T. 369 (Tri.-Chennai) held that Eclairs weighing less than 10 gms and, hence, exempt from the requirement of printing MRP, would be covered by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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