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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 ..... ions of Standards of Weights and Measurement Act, 1976 or Rules made there under to declare on the package thereof, the retail sale price of such goods - We are of the view that the requirement of affixing MRP on the retail package of Kenstar Food Processors Accessories be referred to Metrology Department seeking their opinion as to whether the appellants are required to affix MRP on the package containing Kenstar Foods Processors Accessories when the Kenstar Food Processors and the Accessories are cleared in separate packages. In the result, the impugned Order is set aside and the appeals are remanded to the ld. Commissioner for deciding the issue afresh after obtaining the necessary opinion from the Legal Metrology Department in this regard. - Central Excise Appeal No. 525, 527, 528 , 529 of 2008-DB - A/10299-10302/2017 - Dated:- 20-1-2017 - Dr. D. M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Shri Anand Nainawati, Advocate for the appellants Ms. N. Nagori, A.R. for the Respondent-Revenue ORDER Per Dr. D. M. Misra These appeals are directed against the respective orders. 2. Briefly facts of the case are that appellant M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one retail package, hence, subjected to assessment under Section 4A of CEA, 1944. It is his contention that the criterion for assessment is the condition in which it is cleared from the factory conforming to the description prescribed under Notification No.13/2002-CE(NT) dated 1.3.2002. Therefore there is no irregularity in assessing the Kenstar food processor accessories, separately under Sec. 4 instead of assessing it under Section 4A of CEA, 1944. In support, the ld. Advocate referred to the decision of Hon ble Supreme Court in the case of C.C.E., Vadodara vs. Viacom Electronics Pvt. Ltd. and others 2015 TIOL 202 SC CX . He also submitted that the issue involved in the present case is pure question of law, and no fact was suppressed from the department, hence the demand is barred by limitation. 4. Per contra, ld. A.R. for Revenue on the other hand submitted that Kenstar food processors and its accessories though cleared separately, but required to be assessed under Section 4A of CEA, 1944. Ld. A.R. referring to the impugned order submitted that while advertising Kenstar Food Processors, it is clearly disclosed that the said food processor is capable of discharging 13 funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in sub-section (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes of this section, retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale : Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are required to affix MRP on the retail package of Kenstar Food Processors Accessories under the provision of Standards of Weights and Measurement Act and the Rules made thereunder. Needless to mention that in the absence of a mandate from the Standards of Weights and Measurement Act and the Rules made thereunder for compulsorily affixing MRP on the Food Processors Accessories , the same cannot be subjected to assessment under Section 4A of CEA, 1944. This position has been clarified by the CBEC in its No.625/16/2002-CX dt.28.02.2002 as: 5. A somewhat similar issue was examined by the Board earlier vide letter F. No. 341/64/97-TRU, dated 11-8-1997 (1997 (95) E.L.T. T3). This clarification was issued in the context of certain assessees printing MRP on packages even where there was no statutory requirement to do so under the Standards of Weights Measures Act, 1976. It was clarified that in such cases duty will be charged u/s. 4 of C.E. Act, 1944 and not u/s. 4A (the clarification dated 11-8-1997 did not, however, specifically mention whether the disputed goods were notified u/s. 4A or not and whether it covered only non-notified goods). 6. It is, therefore, cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are brought in the arena of Section 4A(1), there would have to be the satisfaction of a particular condition that the packages of such goods are required under the SWM Act and the Rules made thereunder to declare the MRP. The Tribunal has even erred in holding that the circular dated 28-2-2002 is not applicable to the present case. A cursory glance at the circular would suggest that it is applicable to the present case where two commodities have been sold as a market strategy. 9. Anticipating of the possible dispute for determination of the requirement of affixing MRP on the retail packages in a particular case, the CBEC in its Circular No.625/16/02-CX dated 28.2.202 at Para 7 advised the field formation as follows: 7. The Standards of Weights Measures Act, 1976, and the rules made thereunder, are administered by the State Governments. Instances of dispute could arise between the deptt. and the assessee as to whether, in respect of a particular commodity/transaction, the assessee is exempted from declaring the retail price or not. In case of such doubt a clarification may be obtained from the concerned Deptt. (generally the Metrology Deptt.) of the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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