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TMI Blog2023 (7) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... is less than 10 grams will not be governed under Section 4A - The said decision of the Tribunal was approved by the Hon ble Supreme Court COMMISSIONER OF CENTRAL EXCISE, RAJKOT VERSUS M/S MAKSON CONFECTIONERY PVT. LTD. [ 2010 (9) TMI 10 - SUPREME COURT ]. This Tribunal considering the decision in the case of Makson Pharmaceuticals India Pvt. Ltd taking the same view decided the matter in the favour of the assessee in MAKSON PHARMACEUTICALS (I) PVT LTD VERSUS C.C.E. S.T. -BHAVNAGAR (VICE-VERSA) [ 2023 (5) TMI 385 - CESTAT AHMEDABAD ]. The issue is no longer res- integra, therefore, the impugned order is not sustainable - Appeal allowed. - Excise Appeal No. 729 of 2012-DB Excise Appeal No. 11968 of 2013, Excise Appeal No. 11969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the records. We find that under the identical facts in the appellant s own case reported at 2006 (198) ELT 565 (Tri. Ahmd) it was held that wholesale pack of 500 grams to 1 kg is not retail pack and therefore taking the weight of individual piece of confectionery which is less than 10 grams will not be governed under Section 4A. The said decision of the Tribunal was approved by the Hon ble Supreme Court reported at 2010 (259) ELT 5 (SC). This Tribunal considering the decision in the above cited case, in the case of Makson Pharmaceuticals India Pvt. Ltd (Supra) taking the same view decided the matter in the favour of the assessee vide Final Order No. A/ 11102 -11103/2023 dated 03.05.2023. The relevant portion is reproduced below:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5.2 In revenue s appeal, emphasis was made on the amendment of Rule 2(j) of SWM (PC) Rules, 1977, we reproduce the rule prevailing prior to 13.01.2007 and the amended Rule post 13.01.2007. 2. Definitions In these rules, unless the context otherwise requires- (j) net quantity , in relation to commodity contained in a package, means the quantity by weight, measure or number of such commodity contained in that package, excluding the packaging or wrapper;] From the above substitution of Rule 2(j) of SWM (PC) Rules, 1977, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of this Court in Civil Appeal No. 7559 of 2008 (D.19192 of 2008), affirming the decision 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), this appeal is dismissed. Civil Appeal No. 5856/2006 5. Having regard to the fact that the revenue involved in the case is stated to be less than Rs. 15,000/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods] in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. [(1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount.] From the plain reading of the above Section 11D, it is clear that the provision of section 11D shall apply only in case where the assessee collects the duty and does not deposit to the government. In the present case, though the appellant have shown the duty in the invoice but at the same time by issuance of the credit note to the customer, said amount was not collected. Moreover, the duty was paid under protest and thereafter credit note was issued. With this fact, it cannot be said that the assessee has collected any duty and the same was not deposited to the government exchequer. In view of this fact on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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