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TMI Blog2023 (4) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... re and post amendment will be both relevant in deciding the matter. Pre-amendment period of Rule 2 and 3 - HELD THAT:- Sub section 4 of Section 4A states that where the manufacturer removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Hence the appellant has correctly applied Section 4A of CEA 1944 for clearance of the impugned goods during this period. Post-amendment (notification dated 06/06/2013) - HELD THAT:- The amended Rule 2 and 3 of LMPCR, 2011, was not made a part of the show cause notice, for the relevant period and the appellants were not required to meet that legal challenge. This being so the demand by quantifying the duty based on the value of goods determined under Section 4 of CEA 1944, for the post amendment period must also fail - The demand for duty on the impugned goods quantified under section 4 of CEA 1944 for the entire period covered by the impugned order is not le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal representatives all represent their respective parties to help the Tribunal in the administration of justice. They owe a duty to their parties and can, following the proper procedure, place before the appellate forum all that can be fairly, reasonably and legally submitted on behalf of the parties and not more. We sincerely hope that we do not come across another such occasion in future. Appeal allowed as per law, except for the amounts confirmed in the impugned order relating to 1000 table top wet grinders cleared to TNCSC in December 2012 - appeal allowed in part. - Excise Appeal No.41010 of 2017 - Final Order No. 40301/2023 - Dated:- 25-4-2023 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) Shri M.N. Bharathi, Advocate for the Appellant Shri M. Ambe, DC (AR) for the Respondent ORDER This appeal is filed by M/s. Ponmani Industries, Coimbatore against Order in Original No. 49 50/2016-Commr. Dated 4.1.2019. 2. The facts of the case are that the appellants are manufacturers of Table Top Wet Grinders falling under Chapter Heading 85094010 of the First Schedule to Central Excise Tariff Act, 1985. Table top wet g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e branded goods for future clearance. He has further relied upon the following judgments in support of their stand; (a) Butterfly Gandhimathi Appliances Ltd. Vs. CCE, Chennai 2015 (327) ELT 114 (Tri. Chennai) (b) LLM Appliances Ltd. Vs. CCE, Chennai 2015 (1) TMI 496, CESTAT, Chennai (c) Commissioner Vs. LLM Appliances Ltd. 2016 (339) ELT A135 (SC) (d) Jayanthi Food Processing P. Ltd. Vs. CCE, Rajasthan 2007 (215) ELT 327 (SC) (e) PG Electroplast Ltd. Vs. CCE, Noida 2014 (307) ELT 787 (Tri. Del.) (f) Lenovo India P. Ltd. Vs. Commissioner of Customs, Chennai II 2018 (6) TMI 596 CESTAT, Chennai (g) Twinkle Lamps Industries P. Ltd. Vs. CCE, Noida 2017 (357) ELT 630 (Tri. All.) (h) Bigesto Technologies Ltd. Vs. CCE, Noida 2018 (6) TMI 562 CESTAT, Allahabad 4. We have heard Shri M. Ambe, learned AR appearing on behalf of Revenue. He has reiterated the points given in the impugned order. Revenues stand is that the purchase of packaged commodity i.e. wet grinders from the appellant by TNCSC has to be treated as direct purchase of goods by institutional consumers and will hence be covered by exclusion under Rule 3 of Legal M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said rule by Legal Metrology G.S.R.359(E) Notification Dated 06/06/2013, during the period covered by the impugned order, which is reproduced below. In exercise of the powers conferred by sub-section (1) read with clause (j) of sub-section (2) of Section 52 of the Legal Metrology Act, 2009 (1 of 2010), the Central Government hereby makes the following rules further to amend the Legal Metrology (Packaged Commodities) Rules, 2011, namely: 1. (1) These rules may be called as the Legal Metrology (Packaged Commodities) Amendment Rules, 2013. (2) Save as otherwise provided in these rules, they shall come into force on the date of their publication in the Official Gazette. 2. In the Legal Metrology (Packaged Commodities) Rules, 2011 (a) in rule 2, (i) after clause (b), the following clauses shall be inserted, namely: (bb) industrial consumer means the consumer who buys packaged commodities directly from the manufacturer for use by that industry; (bc) institutional consumer means any institution which hires or avails of the facilities or service in connection with transport, hotels, hospitals or such other service institutions which buy packaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. 9. Before examining the issue it would be relevant to compare the meaning of the term institutional consumer in Rule 2 and 3 of LMPCR, 2011 pre and post amendment. Pre-Amendment ( Explanation to Rule 3) Institutional consumer means Post Amendment (clause (bc) to Rule 2) institutional consumer means the institutional consumer any institution like Transportation, Airways, Railways, Hotels, Hospitals or any other service institutions which hires or avails of the facilities or service in connection with transport, hotels, hospitals or such other service institutions who buy packaged commodities directly from the manufacturer which buy packaged commodities directly from the manufacturer for use by that institution for use by that institution It is noticed that the amendment to Rule 3 has brought about substantial changes in the law and apart from making the meaning of institutional consumer broader, it has also by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government of Tamil Nadu similar to M/s. ELCOT. M/s. ELCOT had been entrusted by Govt. of Tamil Nadu for procurement of colour T.V. sets and in the present case, TNCSC has been entrusted to procure Mixies, Table Top Wet Grinders, Electric Fans Electric Rice Cookers. Therefore, the ratio of the above decision of the Tribunal in the case of PG Electroplast (supra) clearly applies to this case. . . . . 15. Respectfully following the Hon. Apex Court s decision and the decision of Tribunal in the case of PG Electroplast Ltd. (supra) we are of the considered view that the appellants correctly discharged the duty under Section 4A based on RSP basis. Accordingly, we set aside the impugned orders passed by the Adjudicating Authority in respect of both the appellants and allow the appeals with consequential reliefs, if any.... We find that TNCSC is an undertaking of the Government of Tamil Nadu and cannot be said to be a service institution. We also find that the Hon ble Supreme Court in its judgment in Jayanti Food Processing (P) Ltd. Vs. CCE, Rajasthan reported in 2007 (215) ELT 327 (SC) had held as under; 16. . . . . This Court in Coal Mines Provident Fund Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, was not made a part of the show cause notice, for the relevant period and the appellants were not required to meet that legal challenge. This being so the demand by quantifying the duty based on the value of goods determined under Section 4 of CEA 1944, for the post amendment period must also fail. 9.3. As per the discussions above, the demand for duty on the impugned goods quantified under section 4 of CEA 1944 for the entire period covered by the impugned order is not legal and proper. With duty not payable the penalty imposed, on the foundation of the incorrect valuation of goods, is also not legally sustainable. Hence the demand for duty quantified under section 4 of CEA 1944 and the penalty imposed in this regard are set aside. 10. We next consider point (ii) of para 5 above i.e. whether the 1000 Table top wet grinders cleared to TNCSC in December 2012 without payment of any duty was proper. As noted from the impugned order the appellant has paid a duty of Rs.1,72,089/- (duty of Rs. 1,67,076/- Education Cess Rs. 3,342/- and secondary Education Cess Rs.1,671/-) on 30/08/2015 towards Central Excise duties along with interest of Rs. 82, 603/- on the said goods ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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