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TMI Blog2018 (1) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... anding differential excise duty which was culminated into adjudication order No. ACCEX(Div.II)3/2008-09 dated 30.07.2008 whereby the adjudicating authority dropped the proceeding initiated against the appellant in the show-cause notice dated 16.01.2008. Being aggrieved by the Order-in-Original, Revenue filed an appeal before the Commissioner (Appeals) which came to be allowed, therefore the appellant is before us. 2. Shri Rajesh Ostwal, learned Counsel appearing on behalf of the appellant submits that though the excisable goods i.e. aerated water sold to the institutional consumers namely Spicejet but it contains the MRP, therefore the valuation was correctly done under Section 4A. He submits that when the retail sale price is declared on the package of the goods it is a proof that such goods were intended for retail sale. Therefore the valuation is correctly governed by Section 4A and not Section 4 as contemplated by the Revenue. He submits, in the various judgments of this Tribunal as well as Hon'ble Supreme Court the very identical issue was considered and consistently held that if the MRP is affixed on the goods, the correct value under Section 4A is applicable. He placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 4A of the Act shall stand attracted. (ii) Nitco Tiles Vs. CCE - 2015 (315) ELT 296 (T) "6. In this case, it is not disputed that the appellant are manufacturing ceramic tiles and affixing MRP on the packages and clearing the same on payment of Central Excise duty as per Section 4A of the Central Excise Act, 1944. In some cases, the appellants are clearing goods to their depot and in some cases they are clearing the tiles to industrial/institutional consumers in bulk. As per Rule 2A of the Packaged Commodities Rules, goods which are meant for industrial/institutional consumers are not required to affix MRP. In such cases, duty is payable as per Section 4 of the Central Excise Act, 1944. Therefore, the only dispute regarding the clearance made by the appellant from their factory to industrial/institutional consumers is in dispute. 7. We have examined the purchase orders and corresponding invoices for the supplies by the appellant. We find that in almost all the cases, supplies have been made within a period of one week of the obtaining of the purchase order. As the manufacturing of tiles by the appellant is a continuous process, therefore, these goods are meant for retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 of Jayanti Food Processing (P) Ltd. v. Commissioner of Central Excise, Rajasthan (supra), had clearly held that to come under the purview of Section 4A, the following conditions should be satisfied : (i) The goods should be excisable goods; (ii) They should be such as are solid in the package; (iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package; (iv) The Central Government must have specified such goods by notification in the Official Gaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptions are specified in Rule 2 and Rule 34. From the observations in respect of telephone instruments and the refrigerators made by the Hon'ble Supreme Court, it becomes clear that once MRP is required to be affixed and it is affixed, the assessment has to be done under Section 4A only. Further, the provisions of Section 4A of Central Excise Act, 1944 also provide that what is required for assessment under Section 4A is coverage of the product under SWM Act and the rules thereunder and the requirement of marking MRP on the package. It is for the assessee to claim exemption if assessee does not want assessment to be made under Section 4A or assessee does not want to affix MRP on the package. It has to be noted that according to Rule 34 of SWM Rules, assessee need not affix the MRP only when it is clearly marked on the package that the goods have been specially packed for the exclusive use of an industry as a raw material or for the purpose of servicing any industry. Therefore, to avoid the requirement of printing MRP, a manufacturer is required to indicate on the package itself that the goods are made exclusively for industrial use as a raw material. Just because the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;. Learned Counsel relied on the definition of wholesale package under Rule 2(x) of the SWM (PC) Rules and pointed out that the package in question came within the definition of wholesale package as there are a number of retail packages in the form of Mineral Water Bottles in that one package and further the said package is not intended for sale directly to a single consumer. These bottles which were of 200 ml. capacity were not meant for sale directly to a single consumer. He, therefore, urges that this matter was identical with Jayanti Foods case and, therefore, we should take a view that the valuation should be on the basis of Section 4 and not under Section 4A of the Act as has been done by the Tribunal. Though the Tribunal has relied on the judgment passed by it in the case of Jayanti Foods, we find that there is no parallel in between Jayanti Foods and the present case. In a way there is a conflict in these two cases in the sense that while Jayanti Foods would want its valuation under Section 4, the present assessee would want it under Section 4A of the Act. 38. The factual scenario is that though the MRP was declared on the package of 12 bottles, the bottles did not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which supplies the same to the passengers on demand. Therefore, the contention of Shri Subba Rao has to be rejected that we should draw a parallel in this case with the appeal of Jayanti Foods and hold that Section 4 is applicable to the transactions. Once that position is clear, the package will be covered under Section 6 requiring the declaration of retail sale price which appears on the package. In this behalf we must take into consideration the definition of commodity in packaged form as provided in Section 2(b) of the SWM Act. The definition is as under: "2(b) commodity in packaged form means commodity packaged, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale, whether wholesale or retail." Twelve bottles were packed in a wrapper and the wrapper contained the MRP price though the bottles themselves did not have the price. Therefore, we accept the view taken by the Commissioner (Appeals) and the Tribunal that the MRP was correctly mentioned and as such the assessment should have been under Section 4A of the Act and not for the reasons given by the Tribunal that we uphold the ultimate verdict of the Tribunal that the valuation should be under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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