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TMI Blog2015 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing the stoves in their factory, got the packing material with the description of the product etc. printed on it from outside and the stoves are cleared from the factory in packed condition. The LPG stoves were notified under Section 4A of the Central Excise Act, 1944 and accordingly the duty on the stoves cleared by the appellant was required to be paid on the assessable value determined under Section 4A, that is, on the basis of the declared MRP minus abatement specified in the notification issued under Section 4A. 1.2 There are three allegations against the appellant. (1) The first allegation is that during the period of dispute from 09/06/98 to 31/08/2000, while some MRP was printed on the packages, the appellant put a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rading Co., Garishpur (Modasa) and M/s Syam Enterprises, Thirumullavaram, Kerala without payment of duty. The duty demand of Rs. 28,531/- is on this basis. 1.3 The Additional Commissioner vide order-in-original dated 28/2/05 confirmed the above-mentioned duty demands against the appellant alongwith interest thereon under Section 11AB and beside this, imposed penalty of Rs. 11,91,164/- on the appellant under Section 11AC. This order of the Joint Commissioner was upheld by the Commissioner (Appeals) vide order-in-appeal dated 09/5/06. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 3. Shri S.K. Pahwa, Advocate, Advocate, the learned Counsel for the appellant, pleaded that so far as dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of two MRPs one originally printed on the carton and the second shown on the stickers, and, hence, the duty demand of Rs. 11,91,164/- under the provision of Section 4A of the Central Excise Act, 1944 on the basis of higher of the two MRP is not sustainable, that same view has been taken by the Tribunal in the case of Sukumar Soft Drinks vs. CCE, Bangalore reported in 2006 (206) E.L.T. 1021 (Tri. Bang.), that the ratio of these judgments of the Tribunal is squarely applicable to the facts of this case, more so, when it is not the case of the Department that the stoves had sold by the appellants dealers on the MRP is much higher than the MRP printed on the sticker, that in view of this, the duty demand of Rs. 1,59,304/- is not sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable, that as regards the duty demand of Rs. 28,531/- based on the basis of clandestine removal is concerned, this demand is based on the blank invoice book of M/s Ankur Enterprises, that the Departmental officers, on the basis of the impressions on the duplicate copies, have ascertained the name of the dealers and the quantity of the stoves which may have been sold under the invoices though the original invoices are not available, that except for one dealer M/s Leena Gas Service, no inquiry has been conducted with other three dealers M/s Syam Enterprises, PO Kollam, Kerala, M/s Betal Trading Co., Garishpur (Modasa) and M/s Syam Enterprises, Thirumullavaram, Kerala and that in view of this, the duty demand of Rs. 28,531/- is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the cartons and the other shown on the sticker and hence the duty demand in terms of Explanation II to Section 4 on the basis of higher of the two MRP would not be sustainable. The Tribunal in this order also held that affixing of sticker showing revised MRP over the printed MRP on the packages is in accordance with Rule 6 of the Standards of Weight and Measures (Package) Rule, 1977 and it fulfils the requirement of the declaration in terms of Section 4A of Central Excise Act, 1944. Same view has been taken by the Tribunal in the case of Sukumar Soft Drinks vs. CCE, Bangalore (supra). We are of the view that the ratio of these judgments of the Tribunal is squarely applicable in the facts of this case. Therefore, the impugned order confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irumullavaram, Kerala. However, except for M/s Leena Gas Service who have denied to purchase of any gas stoves and no inquiry has been made with other dealers. In view of this, this duty demand is also not sustainable and has to be set aside. 9. In view of the above discussion, while the duty demand of Rs. 11,91,164/- with interest and equal amount of penalty and also the duty demand of Rs. 28,531/- with interest and penalty is set aside, so far as the matter of duty demand of Rs. 1,59,304/- is concerned, this demand is also set aside and the matter is remanded to the original Adjudicating Authority for denovo adjudication after permitting cross examination of the dealers. The appeal stands disposed of as above. (Dictated and pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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