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TMI Blog2015 (12) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ods supplied. Once we find that the footwear is an item which is specified under Section 4A, which is covered by Weights and Measures Act and Rules, and MRP was affixed on the products supplied, which were not exempted under Rule 34 of the Rules, the provision of Section 4A of the Act shall stand attracted. Issue is no more res integra and has been elaborately dealt with by this Court in 'Jayanti Food Processing (P) Ltd. v. Commissioner of Central Excise, Rajasthan' [2007 (8) TMI 3 - Supreme Court] - There is no error in the judgment of the CESTAT - Decision in favour of assessee. - Civil Appeal Nos. 999-1001/2008 - - - Dated:- 19-11-2015 - MR. A.K. SIKRI And MR. ROHINTON FALI NARIMAN, JJ For the Petitioner : Mr. K. Radhakri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods for levy of excise duty, in a case where goods are sold to an institutional buyer under a contracted price, shall be governed by section 4 of the Act and not under Section 4A. The Revenue further relied upon few provisions under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as 'Rules') which, according to them, specifies that retail sale price has to be declared only in case the goods are intended for retail sale and not otherwise. The goods sold to institutional buyers at the contract price are not meant for retail sale. Such goods are sold to the institutional buyers and are not intended for sale directly to the consumers. The provisions of Section 4A, therefore, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 28,46,756/- under Section 11A of the Act, along with interest as applicable under Section 11AB of the Act. Penalty of equal amount was also imposed upon the respondent-assessee under Rule 25 of the Central Excise Rules, 2002, read with Section 11AC of the Act. On appeal, learned Commissioner vide its Order-in-Appeal dated 29.11.2006 and 30.11.2006 set aside the demand proposed by the Adjudicating Authority. Aggrieved, the Revenue filed an appeal before Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT'), which vide its judgment and final order dated 20.06.2007 dismissed the appeal and held that the order of the Commissioner (Appeals) is in conformity with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge wherever it occurs in the Chapter shall be construed accordingly. It is, therefore, clear that the package which was sold by the assessee could not be termed as retail package nor the sale thereof be termed as a retail sale and as such there was no requirement of mentioning the retail sale price on that package. All this has been completely missed in the order of the Tribunal. 33. On the other hand the package in question would certainly come within the definition of wholesale package as defined in Rule 2(x)(ii) as it contained the commodity (ice cream) and was sold to intermediary (hotel) for selling the same to the consumer in small quantities. Then Rule 29 would apply to such package which does not require the price t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported the view expressed by the Tribunal that the words servicing any industry could not cover the present case and he further suggested that ice cream cannot be a raw material for any industry. He is undoubtedly right that ice cream cannot be termed as raw material for any industry. However, the words or for the purposes of servicing any industry are broad enough to include the transaction in question i.e., the sale of a pack of ice cream to the hotel industry. Hotel does not manufacture the ice cream and is dependent entirely upon the sale of ice cream to it by the assessee for ultimately catering the commodity in the package i.e., ice cream to the ultimate consumer. In our view this can be squarely covered in the term servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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