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TMI Blog2011 (11) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commodities) Rules, 1977 is applicable on the facts and circumstances of the present case. The pre-deposit of duty interest and penalty is waived and recovery of the same is stayed during pendency of the appeal - Following decision of Makson Confectionery Pvt. Ltd. [2010 (9) TMI 10 - SUPREME COURT] and Kraftech Products [2008 (3) TMI 12 - Supreme court] - Stay granted. - E/3139 and 3141/2009 - Stay Order Nos. 1391-1392/2011-EX(PB) - Dated:- 1-11-2011 - Shri S.S. Kang and Mathew John, JJ. Shri V.K. Agrawal, Advocate, for the Appellant. Shri Sumit Kumar, DR, for the Respondent. ORDER Heard both sides. 2. The applicant filed these applications for waiver of pre-deposit of duty of Rs. 3,51,48,573.62, interest and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977 from affixing MRP. Therefore the provisions of Section 4A of Central Excise Act is not applicable. The applicant submitted that the adjudicating authority in the adjudication order confirmed the demand on the ground that the goods in question are sold in number and not by weight. The applicants are challenging this finding on the ground under Rule 34 of the Standards of Weights and Measures Rules, 1977 is applicable to pouch containing a commodity if weight or measure of the commodity is 10 gms. or less than 10 gms. if sold by weight or measure. The applicant submitted that the weight of the commodity is to be seen and not the number of pouches are to be seen. In the present case, commodity is contained in the pouch and not the pouch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act. 7. The submission is that Revenue also conducted market survey and it is proved that the goods are sold by numbers. Revenue relied upon the findings of the adjudicating authority in paras 25 and 27 of the adjudication order. 8. It is also submitted by the ld. A.R. that the factory is closed therefore to protect the interest of Revenue substantial amount be asked for pre-deposit for hearing of the Appeal. 9. We find that for stay purposes the applicants are not arguing on classification of the goods. The only contention of the applicants for hearing of the stay application is that the goods are not liable to duty under the provisions of Section 4A of Central Excise Act. For ready reference the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes of this section, retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would qualify for exemption under Rule 34 of the Standards of Weights and Measures (Packaged Commodities Rules), 1977, even though the eclairs were sold by numbers. The Hon ble Supreme Court in the case of Kraftech Products (supra) decided that hair dye packed in sachets each containing three gms. and further 3 sachets packed in pouches containing three sachets are sold by weight and not by number. The Hon ble Supreme Court held that commodity is sold by weight not by number. 12. In the present case we find that the commodity is spit tobacco and not pouch, therefore, prima facie we find merit in the contention of the applicant that the exemption under Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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