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TMI Blog2019 (1) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... piece package which actually was a wholesale package. The wholesale package requires the declaration only about the name and address of the manufacturer/ packer, the identity of commodity contained in the package and the total number of retail packages contained in a wholesale package or the net quantity. Once there was no such requirement of declaring MRP, the question of valuation in accordance of Section 4A of the Act does not arise. Commissioner (Appeals) has rightly interpreted the provisions of the Act holding that Section 4A is not applicable to the given facts and circumstances no question of short payment, as alleged, at all arises - appeal dismissed - decided against Revenue. - Excise Appeal No. E/52802/2018 [DB] - A/53472/2018-EX[DB] - Dated:- 17-10-2018 - MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. R.K. Mishra, DR Present for the Respondent: Mr. Rahul Tangri, CA ORDER PER: RACHNA GUPTA The Department vide the present Appeal has challenged the Order of Commissioner (Appeals) bearing No. 35 36 dated 23.02.2018 vide which the assesse s Appeal has been allowed and the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 4 thereof, the same is definitely a short levy and was rightly confirmed by the original Adjudicating Authority. Commissioner (Appeals) has committed an error while ignoring the applicability of Section 4A and the fact that the assesse has failed to declare the MRP on the multi piece package. Order accordingly is liable to be set aside. 5. While rebutting these arguments it is submitted on behalf of the assesse/ respondent that issue has already been settled in favour of the assesse not only by this Tribunal but even by the Hon ble Apex Court. The decision in the case of CCE, Rohtak Vs. Gupta Tobacco Company 2014 (301) E.L.T. A70 (S.C.) has been impressed upon. A prior decision of the Apex Court in the case C.C.E. Rajkot, Gujarat Vs. Makson Confectionery Pvt Ltd. 2010 (259) E.L.T. 5 (S.C.) has also been impressed upon. Latest decision of this Tribunal in the case of C.C.E., Jaipur-2 Vs. Arora Products 2016 (1) T.M.I. 266 is also brought to the notice. It is further submitted that individual packages of weight 6, 8 and 9 grams were not required to bear MRP in view of Rule 26 of Legal Metrology (Packaged Commodities) Rules, 2011. The impugned multi piece packages were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government may allow by Notification in the official Gazzetted. The bare perusal makes it clear that for the applicability of Section 4A, there has to be a Government Notification to specify the goods to declare on the package thereon the retail sale price of such goods. And that the good should be chargeable to duty. Chewing tobacco no doubt is chargeable to duty being classifiable under Chapter 2403-99-10 of Central Excise tariff Act, 1985 but there is no apparent Notification of the Government as is a mandate under Section 4A for the goods herein. Hence, to our opinion, Section 4A is not applicable upon the assesse. 8. Further, with respect to the declaration of MRP on the multi piece package of the assesse, we observe that it is an admitted fact that the chewing tobacco of assesse is first packed in a retail package (weighing 6, 8 and 9 grams) to be sold to the ultimate consumer. Being less than 10 grams, the said pouch is exempted to declare the retail price on the package in terms of Rule 26 of Legal Metrology (PC) Rules, 2011. This particular finding also supports non applicability of Section 4A of the Act. Coming to the multi piece package of the assesse it is an admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the total number of retail packages contained in a wholesale package or the net quantity. Once there was no such requirement of declaring MRP, the question of valuation in accordance of Section 4A of the Act does not arise. We draw our support from the latest decision of this Tribunal in the case of C.C.E., Jaipur Vs. Arora Products, Ajmer 2016 (1) T.M.I. 266 wherein it was held as follows: 7. In the grounds of Appeal the Revenue mainly contested the findings of the impugned order on the premise that the package containing multi piece of identical packets of chewing tobacco are to be considered as a retail package. We find the facts recorded in the notice itself will indicate that each one of the package having less than 10 grams of chewing tobacco has contained all the details as per the statutory requirement like contents and unit price etc. Even the larger packages containing multiple pieces of such small packages, indicated the MRP of individual small package only. It is categorically asserted by the assessee that the bigger package containing multiple pieces of small retail package never carry any MRP for the sale of such package. In other words, there is no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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