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TMI Blog2017 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be assessed under Section 4A of CEA, 1944, a demand notice was issued for recovery of the duty of Rs. 61,92,013/- short paid along with proposition of penalty on the Appellant- manufacturer; and also personal penalty against other co-noticees. On adjudication, the said demand was confirmed along with equal amount of penalty on the appellant-manufacturer and personal penalty against various other appellants under Rule 26 of Central Excise Rules,1944. Aggrieved by the said order, the appellants are in appeal. 3. Ld. Advocate Shri Anand Nainawati for the appellants submits that the appellants while clearing Kenstar Food Processors discharged the duty by determining the assessable value in accordance with Section 4A of the CEA, 1944, on the MRP affixed on retail package of such Kenstar Food Processors . However, the accessories of Kenstar Food Processors cleared separately in separate packages to the purchasers on payment of duty on the transaction value of the goods determined as per Section 4 of the CEA, 1944. He submits that under Notification No. 13/2002-CE(NT) dated 1.3.2002, it is clearly mentioned at serial No.72 the description of goods falling under Chapter 85.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the adjudicating authority. 5. Heard both sides and perused the records. The short point needs to be addressed is: whether Kenstar Food Processor accessories cleared in separate packages, not along with main Food Processors unit containing electric motors, to be assessed to duty by determining the value under Section 4A or Section 4 of the CEA, 1944. Before analyzing the submissions advanced by both sides, it is necessary to refer to Section 4A of CEA, 1944, which reads as under: Section 4A.-Valuation of excisable goods with reference to retail sale price. (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the [Legal Metrology Act, 2009 (1 of 2010)] or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates 6. The definition of retail package , wholesale package defined under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, relevant for the present purpose reads as below : 2(p) "retail package" means a package containing any commodity which is produced, distributed, displayed, delivered or stored for sale through retail sales, agencies or other instrumentalities for consumption by an individual or a group of individuals. 2(x) "Wholesale Package" means a package containing - (i) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or (ii) a commodity sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity to the consumer in smaller quantities; or (iii) packages containing ten or mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of normal price (prior to 1-7-2000) or transaction value (from 1-7-2000), u/s. 4 of the C.E. Act, 1944. 8. In this regard we receive support from the judgment of the Hon'ble Supreme Court in the case of Jayanti Food Processing Pvt. Limited. v. C.C.E., Rajasthan 2007 (215) ELT 327 (SC). Their Lordships endorsing the said Circular observed as under: "27. The Tribunal in Para 8 of its judgment has observed : "Once the goods are specified items under Section 4A(1) and are excisable goods chargeable duty (sic) with reference value, then such value shall be deemed to be the retail sale price declared on such goods, less amounts of abatements etc. As we have already observed that Weights & Measures Act requires chocolate manufactured by the appellant to be printed with MRP on the same, we are of the view that the duty of excise on such goods is required to be assessed in terms of the MRP. The only exception where a manufacturer can deviate from the general rule of printing of MRP on the package is Rule 34 of Standards of Weights & Measures (Packaged Commodity) Rules, 1977." We are afraid the law is too broadly stated here. It may be that chocolates manufactured by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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