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TMI Blog2007 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ayaraman, Member (T) [Order per : S.L. Peeran, Member (J) (Oral)]. - These appeals arise from Order-in-Appeal No. 41/2005 dated 29-4-2005 confirming Order-in-original No. 12/2005 dated 31-1-2005 and Order-in-Appeal No. 12/2005 dated 13-2-2005 confirming Order-in-Original No. 61/2004 dated 27-9-2004 passed by the Commissioner (A), Bangalore. 2. The appellants were manufacturing biscuits falling under chapter Heading No 19.05.11 of CET and were discharging Excise Duty on the value of the goods determined with reference to the retail price as per Section 4A of the Central Excise Act, 1944 read with Notification No. 5/2001-C.E.(N.T.) dated 1-3- 2001. The Revenue proceeded to re-assess the goods in terms of provisions of Schedule III o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such standard quantities as are specified in relation to that commodity in Schedule-III". Further, Sub-Rule 6(1)(F) ibid requires that the retail sale price of such specified goods should also be declared. The implication of this provision is that the commodity should be packed in specific quantities as declared in Schedule-III. Reference to Schedule-III shows that the biscuits to which these provisions apply should be packed in quantities of 25g, 50g, 75g, 100g. 150g, 200g. 250g. 300g and thereafter in multiples of 100g upto 1 kg. It is therefore, evident that any package containing biscuits in excess of 1 kg. is not specified in the said Schedule-III. In such a situation where a person packs biscuits in a package in excess of one kg, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pec in column 3 of that Schedule.] A careful reading of the above Rule shows that biscuits which are in Sl. No.3 in Schedule-III can be packed in any quantity beyond the maximum standard quantity. Therefore, the reasoning of the lower authorities is incorrect. The appellants are at liberty to pack the biscuits in quantities of more than 1 kg. for retail sale. 6.2 Apart from the above, if the commodity is to be exempted from the above Rules, it should be by way of Rule 34 of the Standards of Weights and Measures (PC) Rules, 1977. Rule 34 deals with exemption in respect of certain packages. For example, if the commodity is packed specially for the exclusive use of any industry as raw material, then there is no need for following the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, there is no requirement under Section 4A or under Packaged Commodities Rules that goods covered by this provisions should actually be sold in retail. In the above decision, the decision of the Tribunal rendered in the case of Jayanti Food Processing Pvt. Ltd. v. CCE - 2002 (141) E.L.T. 162 (Tri.-Del.) has been followed 6.4 Summing up, in view of the fact that the impugned goods viz., biscuits are notified under Section 4A and are not exempted under Rule 34 of the Packaged Commodity Rules, their valuation would be under Section 4A only. Further, there is no requirement in respect of biscuits that they cannot be packed in packages weighing more than 1 kilogram in view of the second proviso to Rule 5 mentioned above. Thus, we allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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