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TMI Blog2013 (9) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... cle parts in bulk from Daruhera Unit. The parts are cleared by Daruhera Unit to SPD, Gurgaon on payment of duty on the Value Determined under Rule 9 read with Rule 8 of the Central Excise Valuation Rules, 2000 i.e. on 110% on the cost of production. The SPD after packaging parts for retail sale, clears the same on payment of duty on the value determined u/s 4A, as packing or re-packing of Motor Vehicle Parts for retail sale amounts to manufacture under the Provision of Section 2(f)(iii) of the Central Excise Act, 1944 and automobile parts are notified under Section 4A. The Department was of the view that Daruhera Unit should have paid duty on clearances the spare parts to SPD Gurgaon on the Value Determined u/s 4A i.e. on MRP minus abatemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest and besides this, imposed penalty of Rs. 30 lakhs on the Appellant under Rule 25 of the Central Excise Rules, 2002. 1.3 Against the above orders of the Commissioner these two appeals have been filed. 2. Heard both the sides. 3. Sh. S. Ganesh, Senior Advocate, along with Sh. P.K. Ram, Advocate, appearing on behalf of the appellant, pleaded that the Motorcycle parts are cleared by Daruhera Unit to their Gurgaon unit in bulk, that at that stage, the same have not been packed for retail sale, that the packing for retail sale is done at the spare parts division at Gurgaon when the MRP is affixed on packages, that the SPD, Gurgaon is registered as a manufacturer as the packing of Motor Vehicle parts for retail sale amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral situation. He also pleaded that in respect of Show Cause Notice dated 17-7-2009, there was no justification for invoking extended period as there was no suppression of any fact or intention to evade the payment of duty on the part of the appellant and for the same reason there is no justification of imposition of penalty on the appellant u/s 11AC of the Central Excise Act or Rule 25 of the Central Excise Rules, 2002. He, therefore, pleaded that the impugned orders are not sustainable. 4. Sh. Davinder Singh, the learned joint CDR, defending the impugned order by reiterating the findings of the Commissioner, pleaded that the provisions of SWM Rules are applicable to the Motorcycle parts cleared by the appellant unit at Daruhera to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade thereunder to declare the MRP of the goods on their packages. In terms of the provisions of SWM Rules, the requirement to declare the MRP on the packages is only in respect of commodities packaged for retail sale. The goods cleared in loose condition to spare parts division for being packed for retail sale are not the packaged commodity and hence there would be no requirement to declare MRP and the provision of Section 4A would not have applicable. We find that the Tribunal in the case of Malhotra Shaving Products (P) Ltd. v. CCE, Hyderabad, reported in 2010 (250) E.L.T. 118, where the facts and the issue involved are, similar has, relying upon the Apex Court's judgment in the case of the Jayanti Food Processing (P) Ltd. (supra), held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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