9911796707
TMI Blog2016 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise (Appeals), Mumbai, wherein Ld. Commissioner (Appeals) has dismissed the appeal of the appellants. 2. The fact of the present case is that assessees are engaged in the manufacture of excisable goods i.e. Lubricating Oil falling under chapter sub-heading No. 2710.90 of the First Schedule to Central Excise Tariff Act, 1985 on job work basis for M/s. Esso Petroleum India Pvt Ltd up to 31/7/2002 and from 1/8/2002 M/s. Exxon Mobil Lubricants India Pvt. Ltd. as the business of M/s. Esso Petroleum India Pvt Ltd has taken over by M/s. Exxon Mobil Lubricants India Pvt. Ltd. The assessee have been clearing the goods of packaging size upto 20 Ltrs on payments of duty on assessable value based on MRP under Section 4A of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 dated 27/11/2006 seeking enhancing the penalty imposed to the maximum penalty specified under Rule 25 of the Central Excise Rules, 2002. 3. Shri. Sushant Murthy, Ld. Counsel for the assessee submits that 50 Ltrs package of lubricating oils is not liable to be assessed under Section 4A on the ground that as per Legal Metrology Act the MRP is not required to be affixed on the package of 50 Ltrs as the same is bulk pack and not for retail sale. He submits that as per letter of Dy. Controller of Legal Metrology dated 9/5/2000 it was accepted that 50 Ltrs pack of engine oil cannot be considered as retail pack, in such case it is clear that on the package of 50 Ltrs MRP is not required to be affixed accordingly the said goods will not be cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 27/11/2006, he submits that as per the above submission penalty is not imposable, hence the Revenue's appeal is not maintainable. 4. Shri S.V. Nair, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned orders inasmuch as demand was upheld, however as regard the Revenues appeal seeking enhancement of penalty from Rs. 10 lacs to equivalent to the duty amount, he submits that since assessee has intentionally evade the excise duty which is proved on the fact that prior 1/7/2001 the assessee was paying excise duty under Section 4A on the same 50 Ltrs pack therefore they have knowingly stopped paying duty. In these circumstances, they are liable for penalty equivalent to the duty. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act shall be covered under Section 4A. As per the standards of weights and measures Rules, some exemption was provided from affixing the MRP in Rule 34 of SoW & M(PC) Rules, 1977 which are reproduce below: 34. Exemption in respect of certain packages Nothing contained in these rules shall apply to any package containing commodity if, - (a) the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry: PROVIDED that this exemption shall not be available in respect of- (i) any yarn which is sold in hanks to handloom weavers; (ii) any component, part or material used in any wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular No. 411/44/98-CX dated 7/1/1998 and No. 625/16/202 dated 28/2/2002 they are of no help to the appellant for the reason that in the said Board circular it is clarified that as per standards of Weights and Measures Rules, if MRP is not required to be affixed then goods should be assessee in terms of Section 4. In the present case as discussed above, 50 Ltrs package is required to be affixed with MRP and no exemption is available. The Board Circulars have no relevance in the facts of the present case. 6.2 Regarding the judgment of Castrol India Ltd (supra) relied upon the assessee, we find that in the said case the dispute was related to 210 Ltrs package, moreover in the said case assessee was paying excise duty on 50 Ltrs pack, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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