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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 ..... ded 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. (2010 (3) TMI 18 - MADRAS HIGH COURT) and Nestle India Ltd. [2009 (5) TMI 766 - CESTAT, BANGALORE] is not sustainable. From the foregoing there remains no doubt that the biscuits supplied to MCD are not eligible for assessment in terms of Section 4A and consequently the demand of differential duty is clearly sustainable. As regards the allegation of suppression of facts, it is evident that they had nowhere declared that they were getting free supply of wheat from MCD and in spite of being fully aware of this fact, they deliberately and misleadingly claimed that ₹ 2 printed on each of the packages was the correct MRP and that too for all packages ranging in weight from 61 gms. to 71 gms to 100 gms each. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants have contended that the clearances made by them to MCD fell under the scope of Section 4A for assessment as MRP was printed on those packages. They stated that the two judgements in the case of Australian Foods Ltd. Vs. CCE, Chennai - 2010 (254) ELT 392 (Mad.) and in the case of CCE, Mysore Vs. Nestle India Ltd. - 2009 (248) ELT 37 (Tri.-Bang.) are not applicable in their case because in both these cases the supplies of goods were made to institutional customers and no MRP was marked thereon. They referred to the judgement of the Supreme Court in Jayanti Foods Processing Pvt. Ltd. - 2007 (215) ELT 327 (SC) to press the point that in a situation when MRP is printed the assessment is to be done under Section 4A. They stated that MCD is a local body and that their case is also covered by Tribunals judgement in the case of P.G. Electro Plast Ltd. Vs. CCE, Noida - 2014 (307) ELT 787 wherein it was held that the television sets sold to M/s ELCOT for free distribution were liable to assessment under Section 4A. Regarding the fact that the MRP on the packages cleared for MCD was uniformly declared to be ₹ 2/- though the packages were of 63 gms., 71 gms., and 100 gms, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 supplied by the assessee to their institutional customers in bulk based on specific contracts entered into with them, printing on them that they are specifically packed for such institutional customers and not meant for retail sale, and thus are exempted under Rule 34(a) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, the assessee cannot say that he is obliged under the provisions of the Standards of Weights and Measures Act to declare the retail sale price on the package-A pre-condition to claim benefits under Section 4A of the Act. The appellants have contended that these two judgements do not cover their case because the MRP was not printed on the goods covered under these two judgements while in their case the MRP was printed. It needs to be pointed out that the circumstances obtaining in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the requirements of the SWM (PC) Rules and the contract price itself was fixed keeping in view that MCD supplied wheat (for making biscuits) free of cost. This obviously means that the so called MRP was legally not MRP in terms of SWM (PC) Rules; it was just a figure mentioned on the packages in the name of MRP. Further supplies to MCD were not even a sale at arms length because as per the contract under which the goods were supplied the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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