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TMI Blog2020 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... They raised audit objections during November December 2008. Subsequently, a show-cause notice dated 09.03.2012 was issued to the appellant invoking extended period of limitation under proviso to Section 11A of Central Excise Act 1944 demanding central excise duty of Rs. 58,70,195/- along with interest and proposing to impose penalties under Rule 25(1) of Central Excise Rules read with Section 11AC of the Central Excise Act 1944. After following due process, learned Commissioner passed the impugned order confirming the demand of duty in respect of clearances made by the appellant between March 2007 to February 2009 under the Proviso to Section 11A. He also demanded interest on this amount under Section 11AB and imposed a penalty equivalent to the differential duty under Rule 25(1) of Central Excise Rules 2002 read with Section 11AC of the Central Excise Act 1944. Further, he imposed a penalty of Rs. 2,00,000/- upon Shri Gujjala Dharma Reddy, Chief Manager of the firm who is the appellant in Appeal No. 3208 of 2012 under Rule 26 of the Central Excise Rules 2002. Aggrieved by this order, the preset appeals have been filed by the appellants. 3. The appellant firm had cleared, during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , packing, forwarding and the like, as the case may be, and the price so printed is the sole consideration for the sale: Provided that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale price declared on them, then, such declared retail sale price shall be taken into consideration for determining the rate of duty under respective S.Nos. referred to above: Provided further that if the declared sale price on wholesale package and on the standard packages is different in terms of per tonne equivalent sale price, then, the per tonne equivalent sale price of the wholesale package or per tonne equivalent retail sale price of the standard packages, whichever is higher, shall be taken into consideration for determining the rate of duty: Provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form; 4. As can be seen, there is no dispute that the goods manufactured by the appellant fall under the Chapter Headi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal Metrology, Govt of Andhra Pradesh. Therefore the Tribunal held that the assessee was eligible for the benefit of Sl No. 1A of the exemption notification. This order of the Tribunal was also appealed by the Revenue in civil appeal No 1901-1905 of 2011 which was dismissed by the Hon'ble Apex Court. 7. Thus we have two judgements which reached finality at the hands of the Hon'ble Apex Court one in which the benefit of exemption notification Entry No 1C was only extended and another in which the benefit of exemption notification at Sl No 1A was extended. 8. Learned Commissioner in the impugned order has distinguished the case of Sagar Cements Ltd (supra) on the ground that in that case there was a specific letter from the Controller of Legal Metrology that retail sale price was to be declared and hence the benefit has been extended. While in the present case no such letter has been put forth by the assessee. He, therefore, examined the provisions of Standards of Weights and Measures (packaged Commodities) Rules 1977 and came to the conclusion that there was no requirement of declaring the retail sale price on the cement bags in question and therefore the ratio of the Sagar Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgement was followed by the Commissioner in the impugned order. There is another judgement in the case of Sagar Cements Ltd in which cement was cleared in 50Kg bags and retail sale price was printed as per the directions of the Controller of Leal Metrology, Govt of Andhra Pradesh. The assessee relies on this case. 12. In order to examine the present case, the third proviso in question is reproduced below: "Provided also that where the retail sale price of the goods are not required to be declared under Standards of Weights & Measures (packaged commodities) Rules 1977, and thus not declared, the commodity shall be determined as is in the case of goods cleared other than packaged form". 13. A plain reading of the above proviso shows that the mischief of this proviso is attracted where the retail sale price is not required to be declared and also has not been declared. In this present case, even if the Revenue's argument that the retail sale price is not required to be declared is accepted there is no dispute that it has been declared. Therefore in our considered view, the assessee is not covered by this proviso. There is a more specific proviso which covers the assessee's case wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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