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TMI Blog2016 (10) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hair Dye in a monopack carton containing six numbers of such sachet. The weight of goods in individual sachet satisfies the condition of Rule 34 of 1977 Rules. Therefore, goods of appellant are covered by Rule 34 of the 1977 Rules and enjoy exemption from application of the 1977 Rules. Revenue says that legal Metrological Department has opined that the goods in question being 5.6 gms. each that ipso facto cannot be considered to be a multi-piece package. We are not guided by this opinion of the Metrology authority in view of factual finding of the adjudicating authority as to the weight of the sachet and clearance of six numbers of sachets packed in mono-pack carton attracting Rule 34 of the 1977 Rules, being a pack of 6 gms. in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tres or less, when those were sold by weight or measure. Appellant also pleaded that once the goods are covered by the above rule, the 1977 Rules is not applicable to such goods and clearance thereof to be treated in multi-piece packs attracting Section 4A of the Central Excise Act, 1944. To support such contention, appellant, relies on the decision of the Apex Court in the case of CCE Vapi Vs Krafttech Products 2008 (224) ELT 504 (SC). 3. Heard both sides and perused the record. 4. In so far as the facts depicted at the outset are concerned, there is no dispute by Revenue. The legal dispute of Revenue is that the goods of the above nature and description are not exempt under Rule 34 of the 1977 Rules. In view of no factual differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly three sachets are packed in one packet. The weight of three sachets is 9 gms, that is, less than the prescribed weight of 10 gms. .... .... .... 21. Rule 34(b) provides for exemption from the application of the Rules. The expression contained therein that nothing contained in these rules shall apply to any package containing a commodity is of wide amplitude. There cannot be any doubt whatsoever that Rule 34 would apply in a case of this nature if it is sold by weight or measure. The respondents not only do so, they are permitted to do in terms of Schedule V read with sub-rule (2) of Rule 12 of the Rules. .... .... .... 23. We have noticed hereinbefore that each package offered to sell to the customer contains thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of the Metrology authority in view of factual finding of the adjudicating authority as to the weight of the sachet and clearance of six numbers of sachets packed in mono-pack carton attracting Rule 34 of the 1977 Rules, being a pack of 6 gms. in each sachet. That gets exemption from the application of the 1977 Rules. Accordingly, the goods cleared by appellant are to be assessed under Section 4 of the Central Excise Act without the same assessable under Section 4A thereof on the facts and circumstances of the case. 6. In view of the relief granted in the principal appeal as above, penalty imposed on M/s. CavinKare Pvt. Ltd. is waived and its appeal allowed. In the result, both the appeals are allowed. ( Dictated and pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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