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TMI Blog2024 (2) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... a (DTA). The department felt that for the purpose of charging Central Excise Duty for clearances in the DTA, the value of the goods has to be determined in accordance with the provisions of Customs Act 1962 and Customs Tariff Act (CTA) 1975 and for the same reason, it appeared to them that since in relation to the said goods, it is required under the provisions of Standards of Weights and Measures Act 1976 and the Rules made thereunder, to declare the retails sale price (RSP/MRP) of the said goods on the package of said goods and since the said goods are specified in the notification issued under Sec 4A of the Central Excise Act (CEA) 1944, the value of the goods for calculation of the additional duty of customs (ACD) levied in terms of Sec 3 of the Customs Tariff Act, shall be deemed to be the RSP declared on the imported goods, less the abatement from the RSP allowed in respect of the said goods under sub-sec (2) of Sec 4A of the CEA, 1944 in terms of the proviso to Sec 3(2) of the CTA 1975. 3. Further, in terms of S.No.3 of Notification No. 23/2003-CE dt.01.03.2003, when excisable goods are cleared by a company into DTA, in accordance with provisions of Export and Import Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 25kg of instant coffee, and also where sales were made directly by the Assessee to institutional customers. It was also noted by the Adjudicating Authority that in the following cases, the benefit of Sec 4A cannot be given to the Appellant for the reasons indicated below: a) The contention of the assessee with reference to sale of packages of less than 10gm was not verified by the jurisdictional Assistant Commissioner who reported that the goods cleared from the factory are in the nature of packed cartons containing 2400 sachets and weighing 3.6kg/7.2kg, as the case may be. However, the assessee, in spite of being given an opportunity, failed to produce any evidence that individual sachets were for retail sale and not whole carton. Hence, no benefit from the application of the provisions of Sec 4A of the Act, on packages of 10gm or less as claimed by the assessee can be extended to them. b) Similarly, in respect of clearances claimed to have been made to institutional consumers, on verification it is seen that majority of the clearances are through C&F agents and there were direct sales to Indian Airlines only in few cases. As per Explanation (a) to Rule 2A of Standards of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously, in the present case, goods in question are not indicated for industrial consumers. The Rules also provide for exemption from applicability of these Rules to any package containing commodity if the net weight or measure of the commodity is 10gm or 10ml or less, if sold by weight or measure. The Adjudicating Authority has heavily relied on the word 'directly' from the manufacturer/packer to arrive at the conclusion that for the supply to or through C&F agent would not be covered within the exceptions contained under Rule 2A. 9. The Appellants have given a detailed breakup of different types of clearances in their reply to the Commissioner. In the Annexure-I & II to the reply, they have provided additional information in relation to the same worksheet which was appended to the SCN, which was based on invoices issued by them. Therefore, basically, they have provided explanation on invoice to invoice basis. In Annexure-I, the invoices have been raised to 20 different parties under 4 types of transactions, which has been further detailed in Annexure-II. They have also explained, the abbreviations used in Annexure-I & II to explain the transactions, which are as follows: a) If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd), until received by the customer (institutional buyer). It was also submitted that in the case of institutional sale through C&F agent also, the packages move from the factory affixed with the stickers identifying the customers and the MRP is not marked on these packages as these were meant for consumption by such institutions and not for resale. Therefore, according to them, barring the admitted amount, differential duty cannot be demanded. They have also additionally argued that in the facts of the case, there is no justification for invoking extended period. Since the practice being followed for the valuation was based on the earlier decision of the Tribunal, vide Final Order No.817- 819/2004 dt.19.04.2004 (Tata Coffee Ltd vs CCE, Hyderabad) [2004 (168) ELT 460 (Tri-Bang)] and after the insertion of Sec 4A, the practice had continued inadvertently and therefore, there was no intent to evade. They have also relied on the fact that ER1 returns were filed regularly and copies of all invoices till October 2008 were being enclosed along with ER2 returns till the time the Appellants were asked not to submit invoices with ER2 returns. Therefore, basically, when the department was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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