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TMI Blog2015 (10) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough ER-1 Returns, classification, declarations, letter dated 5.11.97 and also the demand and settlement of the demand as discussed earlier in the latter period. As such, we find that the demand for excise duty on Chloromint indicating extended period is not sustainable because of application of time bar under Section 11 A of Central Excise Act, 1944. Regarding valuation of free supply items when the goods are subjected to MRP based assessment, we find strong force in the appellant's plea that the retail packing in these cases are the jars, which bear the MRP declaration as per the legal requirements and also clear indication to the effect that numbers of free pieces inside the said pack - Jar. The retailers could be selling individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L Narsimhan, Adv For the Respondent : Shri Pramod Kumar, DR ORDER Per B Ravichandran The appellants are engaged in the manufacture of sugar confectionery, chewing gum, chloromint, etc. The present appeal is against the order-in-original No.02/PP/CE/2007 dated 28.02.007. The appeal is basically against the demand of central excise duty consequent on re-classification of chloromint under Heading No.30.03 and certain under valuation of Section 4 as well as MRP based items cleared by the appellants. The issue involved and the amount involved can be summarized in the following table:- Sl.No. Issue Period of demand Duty amount (in Rs.) Penalty amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was settled vide order dated 21.11.2005 by the Hon'ble Settlement Commission. After such settlement of the issue, the present demand dated 6.2.2006 covering the period 1.3.2003 to 31.01.2004 alleging suppression of facts, etc. is legally untenable. The fact that they are manufactures of Chloromint and there has been a dispute regarding the classification of the said products, which was a subject matter of demand and settlement clearly will show that all the facts are in the knowledge of the Department and there is no case of suppression whatsoever. 4. The appellant relied on the Hon'ble Supreme Court's decision in the case of Nizam Sugar Factory reported in 2006 (197) ELT 465 (SC) 5. On the second issue regarding fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Representative reiterated the findings of the order-in-original. He contested the appellant's plea that the Jars are to be considered as retail packings. He submitted that there could be sale of individual items contained in the Jar to the ultimate consumers. In other words, if a jar contains 100 pieces + 10 pieces as free if individually sold, retailer gets price of 110 pieces. Hence, he argued that the value of 110 pieces should be taken for excise purpose. When asked specifically regarding declaration of MRP on the Jars, the ld. AR fairly accepted that there is no evidence of individual pieces of Alpenliebe having MRP affixed on them. Regarding valuation of Chloromint in cases of free supply of certain extra pieces, he argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgements and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant. 11. The fact that the appellant was classifying the product under Heading No. 1704 was always in the knowledge of the Department through ER-1 Returns, classification, declarations, letter dated 5.11.97 and also the demand and settlement of the demand as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 clarified that if an individual item is supplied free in the multi pack and has no MRP printed on it, the MRP printed on the multi pack will be taken for the purposes of valuation under Section 4 A. We find that the case law and the clarification of the Board are applicable to the present situation and as such, we hold that the demand of central excise duty in respect of such free items is not sustainable. 13. The final issue is regarding additional quantities of products supplied as sales promotional efforts as free items along with same products assessable under Section 4. The lower authority had disallowed the discounts only on the ground that the same are referred to as promotional schemes and not as quantity discounts. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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