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TMI Blog2014 (12) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ry penalty in respect of M/s Bajaj Food Products (P) Ltd. In addition personal penalty of Rs. 5 lakhs each was imposed on Shri Arvind Maheshwari, Director and Shri A.D. Bajaj, Managing Director 2. The facts, briefly stated, are as under: The appellants were manufacturing and clearing biscuits to Municipal Corporation of Delhi on contract basis as well as to other independent buyers. The clearances/supplies of biscuits made to MCD under the National Programme of Nutritional Support of Primary Education were assessed by them under Section 4A of the Central Excise Act, 1944 and duty was paid thereon after claiming abatement of 40% up to 20.2.2003 (and 35% thereafter), on the so called MRP printed thereon. The adjudicating authority held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment under Section 4A. Regarding the fact that the MRP on the packages cleared for MCD was uniformly declared to be Rs. 2/- though the packages were of 63 gms., 71 gms., and 100 gms, they said that the price was fixed at Rs. 2 per unit pack and the only variation was with regard to the quality of the biscuits and that the price pertained to different periods. They also contended that there was no suppression on their part and they have been filing their periodical returns and the issue is also interpretational inasmuch as it requires interpretation of whether the MRP is required to be printed on the impugned goods. They also referred to the clarification dated 4.9.2003 issued by Legal Metrology department to the effect that such packages s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to MCD in packages of 63gms. and 71gms. were obviously not in conformity with the requirements of/under the PC Rules. In the case of Nestle India Ltd. (supra) where coffee was supplied to defence services and ITBP with clear markings 'for defence services only' and for ITBP' respectively it was held that the valuation was to be done under Section 4 and not under Section 4A. In the case of Australian Foods Ltd. (supra), it was, inter alia, held that supplies to institutional customers was to be assessed under Section 4 as against Section 4A. The Madras High Court in that case (i.e M/s. Australian Foods Ltd. ) observed that: The products are being sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utional buyer and therefore no MRP was required to be printed on such goods as the provisions of Chapter 2 of the SWM (PC) Rules do not apply to packaged commodity sold to institutional buyers. Madras High Court in the case of Australian Foods Ltd. categorically observed that such supplies were exempted under Rule 34(a) of Standards of Weights and Measures (Packaged Commodities Rules 1977). Thus, their claim that so called MRP was printed on their packages is of no consequence when it was not required to be printed. However as this point is harped upon by the appellants, we deem it fit to discuss and analyse it further. The Retail Sale Price is defined under the SWM (PC) Rules 1977 as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MCD provided them free wheat. It is thus evident from the definition of retail sale price quoted earlier that the price at which MCD bought the impugned goods cannot be called MRP because that price was negotiated taking into account the fact that the appellants were given free supply of wheat. So, it is beyond doubt that what was mentioned on those packages was not MRP. Thus ground on which the appellants attempted to distinguish their case from the cases of Australian Foods Ltd. (supra) and Nestle India Ltd. is not sustainable. 6. The appellants have referred to the case of Jayanti Foods Pvt. Ltd. in their support. The facts obtaining in that case were entirely different. The goods involved in that case carried proper MRP as per the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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