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TMI Blog2017 (12) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act, 1944 - the appellant is not required to pay the duty under Section 4 of the Act and they have correctly paid the duty under Section 4A i.e. the MRP less abatement. Time limitation - Held that: - it is clear that at the time of manufacturing of the said goods, it was not known to the appellant that whether these goods meant for the industrial consumers or for retail sale. In that circumstances, suppression is absent from the facts of the case - extended period not invokable. Appeal allowed - decided in favor of appellant. - E/2897/2007 - A/62097/2017-EX[DB] - Dated:- 2-8-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. S. K. Pahwa, Advocate for the Appellant Sh. V. Gupta, AR for the Respondent ORDER Per: Ashok Jindal The appellant is in appeal against the impugned order wherein the demand of duty of ₹ 2,20,654/- has been confirmed along with interest and equivalent amount of penalty was also imposed on the appellant by way of the impugned order. 2 The brief facts of the case are that the appellant started manufacturing Insulating Varnish falling under Chapter 3208. As per the goods fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant time and declaring that they are paying duty under Section 4A of the Act on the said goods, therefore, the show cause notice issued to them is barred by limitation as there was no mens rea of the appellant to suppress the fact that they are selling the goods to the industrial consumers with mala-fide intention and paying duty under Section 4A of the Act. To support this contention, he relied upon the following decisions of the Hon ble Apex Court:- (I) Padmini Products Vs. Collector of Central Excise - 1989 (43) ELT 195 (SC). (II) Tamil Nadu Housing Board Vs. Collector of Central Excise, Madras - 1994 (74) ELT 9 (SC). (III) Indian Hotels Co. Ltd. Vs. CST, Bangalore - 2014 (36) STR 1268 (Tri. Bang). (IV) Choudhary Yatra Co. Pvt. Ltd. Vs. CCE, Nashik - 2013 (29) STR 240 (Tri. Mum). 5. The contentions of the Ld. Counsel were strongly opposed by the Ld. AR who submits that at the time of clearance, the appellant knew that the goods have been sold to the industrial consumers, therefore, they were required to pay the duty as per Section 4 of the Act. He also submitted that as the appellant has not mentioned in the declarations that they are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The brief facts of the case are that the appellant is a manufacturer of ceramic tiles and clearing the same to their depots. The appellant sold this tile to dealer who in turn sells to ultimate consumer. The appellant also sell tiles to buyers such as Real Estate Developers, Construction Co., Cooperative Housing Societies, Commercial Complexes, Educational Institutions Hostels, Hotels, Hospitals, Interior Designers, etc. The product manufactured by the appellant is ceramic tiles is required to pay duty as per Section 4A of the Central Excise Act, 1944 i.e. MRP less abatement. The appellant is discharging the duty liability as per Section 4A but the Revenue is of the view that as these tiles have been cleared to Industrial or Institutional consumers, they are not required to discharge Central Excise duty as per Section 4A as clearance to these Institutional or Industrial Consumer is exempt to affix MRP as per Rule 2A of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Therefore, the appellants are required to pay duty on transaction value i.e. as per Section 4 of Central Excise Act, 1944. Accordingly, impugned proceedings were initiated against the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the packages meant and marked as industrial/institutional consumers. Similarly, the Assistant Controller of Legal Metrology, Government of Karnataka, vide letter dated 24/02/2012 has clarified that institutional/industrial package does not bear the MRP marking but will have marking as meant for industrial/institutional consumer and not meant for retail sale. Similarly, Controller of Legal Metrology, Government of Gujarat has clarified that the only packages which bear clear markings meant for industrial consumer or meant for institutional consumer are excluded from the provisions of Packaged Commodity Rules and such packages should have a further marking that they are not meant for 'retail sale'. From these clarifications, which have been issued by the authorities implementing the Legal Metrology (Packaged Commodities) Rules, 2011, it is absolutely clear that the supplies made by the appellant to the various institutional buyers are not excluded from the declaration of MRP under the Packaged Commodities Rules. We cannot disregard these clarifications given by the competent authorities in the matter. 5.1 We further observe that the Hon ble Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that as the goods were already manufactured and intended for retail sale, therefore, they have correctly discharged the duty and the goods cleared in bulk does not mean that they are meant for industrial/institutional consumers. It should be meant for industrial/institutional consumers under the Standards of Weights Measures Rules to pay duty under Section 4 of the Central Excise Act, 1944. Relying on the above judicial analysis by this Tribunal in the case H R Johnson (India) Ltd. Vs. CCe, Raigad (supra) and Nitco Tiles Vs. CCE, Raigad (supra) , we hold that the appellant is not required to pay the duty under Section 4 of the Act and they have correctly paid the duty under Section 4A i.e. the MRP less abatement, therefore, we do not find any merit in the impugned order. 9. On limitation, we find that the appellant was filing their declaration before manufacturing the goods and declaring that they will pay duty under Section 4A of the Act. From the facts of the case, it is clear that at the time of manufacturing of the said goods, it was not known to the appellant that whether these goods meant for the industrial consumers or for retail sale. In that circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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