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TMI Blog2023 (5) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the wholesale pack of 500 gm or 1 kg is not a retail pack therefore, the MRP of wholesale pack cannot be taken for the valuation in terms of Section 4A whereas, the individual confectionary which is less than 10 gm should be considered and as per Rule 34 of Standards of Weights Measures (Packaged Commodities) Rules, 1977 (SWM Rules) i.e. exemption from affixing the retail sale price on the goods of less than 10 gms, the valuation under Section 4A is not correct. In view of the Rule 34 (b), which was prevailing throughout the period involved in the present case, there is a clear provision that in case of the product of less than 10 grams, there is no requirement for affixing retail sale price - Since in the earlier decision of the Hon ble Supreme Court it was categorically held that for the purpose of assessment, individual confectionary has to be taken and not the wholesale pack. The individual confectionary is undisputedly below the weight of less than 10 gram and in terms of Rule 34(b) of SWM (PC) Rules, 1977 there is no requirement for affixing the retail sale price. The said product cannot be taken under the ambit of Section 4A of Central Excise Act, 1944. Confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dropped the proceedings for total duty of Rs.5,19,87,168/- under 15 show cause notices for the period from January, 2006 to December 2009 on the ground that goods are liable to be assessed under Section 4 of the Central Excise Act, 1944 as contended by the assessee. The assessee has preferred an appeal against that part of the order by which the learned Commissioner has confirmed the demand of Rs.16,79,841/- under Section 11D of the Central Excise Act, 1944 on the ground that the company has collected excise duty from buyers as assessed under Section 4A of the Central Excise Act and while they have paid lesser duty to the government under Section 4 of the Central Excise Act, 1944. 2.1 The assessee is engaged in the manufacture of sugar confectionaries falling under Chapter 17 of the Central Excise Act, 1944 the assessee is manufacturing and selling confectionaries of various brand names such as M/s. Nestle India Ltd and others. The clearance in question are made under jar pack (1 kg) or poly bag (500 gm) containing multiple individual confectionaries. The individual confectionaries are wrapped in a printed plastic film. The weight of the individual confectionary is about 4 gm/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the tribunal in their own case in M/s. Swan Sweets Pvt. Ltd. reported at 2006 (198) ELT 565 which was upheld by the Hon ble Supreme Court reported at 2010 (259) ELT 5 (SC). As per the said judgment, the wholesale pack of 500 gm or 1 kg is not a retail pack therefore, the MRP of wholesale pack cannot be taken for the valuation in terms of Section 4A whereas, the individual confectionary which is less than 10 gm should be considered and as per Rule 34 of Standards of Weights Measures (Packaged Commodities) Rules, 1977 (SWM Rules) i.e. exemption from affixing the retail sale price on the goods of less than 10 gms, the valuation under Section 4A is not correct. 06. We have carefully considered the rival submissions and perused the records. The revenue s appeal is only on the ground that by amendment dated 13.01.2007 in Rule 2(j) of the SWM (PC) Rules, 1977 the earlier judgment in the appellant s own company is distinguished. In this regard, we reproduce Rule 34 (b) which has prevailed prior to 13.01.2007 and subsequent to that which reads as under:- Before 13.01.2007 Rule 34. Exemption in respect of certain packages Nothing contained in these rules sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below:- 2 . In view of the order of this Court dated 15th September, 2008, dismissing CA. No. 7559 of 2008 (D.19192/2008) [2008 (232) E.L.T. A107 (S.C.)], preferred by the Revenue against the order of the Tribunal in the case of Central Arecanut Cocoa Marketing Processing Co-Op. Ltd. v. C.C.E., Mangalore, 2008 (226) E.L.T. 369 (Tri.-Chennai), the issue raised in the appeals is no more res integra. In the said order, the Tribunal relying on its earlier decision in the case of M/s. Swan Sweets Pvt. Ltd. [2006 (198) E.L.T. 565 (Tribunal)], one of the respondents in the present appeals had held that a package containing about 100 or more individual pieces of an article, like Eclairs‟ brand chocolates etc., each weighing 5.5 grams would qualify for exemption under Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and will not attract assessment under Section 4A of the Central Excise Act, 1944. 3 . In view of the said decision, with which we are in respectful agreement, there is no merit in these appeals, which are dismissed accordingly, with no order as to costs. Civil Appeal No. 1290/2007 4. In view of the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government.] [(2) Where any amount is required to be paid to the credit of the Central Government under [sub-section (1) or sub-section (1A), as the case may be,] and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under [sub-section (1) or sub-section (1A) or sub-section (3), as the case may be,] shall be adjusted against the duty of excise paya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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