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TMI Blog2017 (11) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimately sold in retail either by the appellant or by M/s Bayer Crop Sciences, thus requiring affixation of MRP - The limitation aspect has not been examined from the Revenue neutrality angle - appeal allowed by way of remand. - E/58294/2013 - A/62067/2017-EX[DB] - Dated:- 13-9-2017 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Devender singh, Member (Technical) Shri. Vikrant Kackaria, Advocate for the Appellants Shri. Tarun Kumar, A.R. for the Respondent ORDER Per: Archana Wadhwa As per facts on record, the appellant is engaged in the manufacturer of pesticides and insecticides falling under Chapter Heading 38.08 of the first schedule to the Central Excise Tariff Act, 1985. It is seen that appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection of the Tribunal for earlier remanding the matter, the relevant paragraphs are being reproduced: 6. We have considered the submissions made by both the sides and have gone through the impugned order of Commissioner. The issue as regards the law is clear that is only those packages which are required to be printed with MRP in terms of Weight and Measure Act read with the Rules, would attract Section 4A assessment. Such the only dispute in the present appeal is as to whether 25Kgs. Packages of insecticides and pesticides cleared by the appellant to a registered dealer can be considered to be retail packing's meant for an ultimate consumer. So as to print the same with MRP or not, we find that the appellant have taken a catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter to the commissioner to examine the above plea of the appellant as regards receiving back of the 25 kgs. Packages from the dealer converting the same into 5 kgs retail packages and clearing the same on payment of duty based upon MRP affixed on the said packages. Limitation plea is being kept open and no findings are being given on the same. The commissioner will reconsider the same in the remand proceedings. The stay petition as also appeals get disposed of in the above manner. 3. During the de-novo proceedings, the appellant appeared before the adjudicating authority and contended as under and produced evidence before him as under: 2.3 That there is specific finding of the Hon ble Tribunal that evidence is to be produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.11.2012 along with sample copies of sale invoices, invoices covering the return goods for repacking and furthers the clearances of goods under MRP. He also contested the invocation of extended period of limitation on account of the fact that their audit was being regularly undertaken by the department CERA and no such objection was ever raised when the invoices for 25Kgs packing clearly mentioned the words Transaction Value and by that way, there is no suppression of facts. Further in respect of the show cause notice 19.07.2011 for the subsequent period, he requested for 15 days time to file the reply and related documents which was allowed. Thereafter, he filed additional submissions dated 10.12.2012 alongwith documents in case of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the impugned goods are covered by the Provisions of Section 4A of the Act read with Rule 2A of the standards of weight and measures (packaged commodity) Rules, 1977. 4.7 It is also observed that the CESTAT in their remand order has given the view that 25Kgs. Packages sent to the dealer are not retail packages as the Revenue has not come up with any evidence to show that these 25 kgs. Packages also got to the market in retail sale and are meant for consumption by the ultimate consumer. It is observed that the Assistant Commissioner, Central Excise Division, Ropar vide letter C.No. IV(16)Adjudication/Tech/RPR/09/10/1136 dated 26.03.2013 has informed that after issuances of two show cause notices up to December, 2010 for recovery of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecially when there is no financial loss to the appellant. Whatever, duty has been paid by them is available as credit to M/s Bayer Crop Sciences, who utilise the same for payment of duty on the same vary packages when returned to the appellant. On return, the appellant avail the credit of the said duty and use it for payment of duty on 5 kg packages. As such, adoption of the said route, has satisfied the Revenue and to avoid any further legal obligation, the appellant has indulged into the same. 7. After hearing the Ld. AR, we find force in the appellant's contention that the Tribunal directions have not been carried out by the adjudicating authority in spirit and no efforts have been made by them to find out to whether 25Kg package ..... X X X X Extracts X X X X X X X X Extracts X X X X
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