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TMI Blog2024 (7) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... isplay of price on such HDPE bags. Even assuming that 100 poly packs were retail packages, HDPE bags would be covered by the definition of wholesale package as defined in clause (iii) of Rule 2(x) of the said Rules. Thus, the HDPE bags are not group packages within the meaning of Rule 2(g). The impugned judgment is not satisfactorily worded, the ultimate conclusion recorded in the impugned judgment that Section 4A(1) of the Excise Act was not applicable to the goods subject matter of the show cause notices, cannot be faulted with - there is no reason to interfere with the impugned judgment - Appeal dismissed. - Abhay S. Oka And Pankaj Mithal , JJ. For the Appellant : Ms. Nisha Bagchi, Sr. Adv. Mr. Rupesh Kumar, Sr. Adv. Ms. B. Sunita Rao, Adv. Ms. Chinmayee Chandra, Adv. Mr. Siddhant Kohli, Adv. Ms. Aakansha Kaul, Adv. Mr. Shiv Mangal Sharma, Adv. Mr. Mukesh Kumar Maroria, AOR For the Respondent : Mr. V Lakshmikumaran, Adv. Ms. Charanya Lakshmikumaran, Adv. Ms. Apeksha Mehta, Adv. Ms. Neha Choudhary, Adv. Ms. Umang Motiyani, Adv. Ms. Falguni Gupta, Adv. Mr. Aayuah Agrawal, Adv. Mr. M.P. Devanath, AOR Ms. Jyoti Pal, Adv. JUDGMENT ABHAY S. OKA , J. FACTUAL DETAILS 1. These appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, a demand was made for interest and penalty. 2. The respondent replied to the show cause notice by contending that 100 poly packs, each containing 33 small pouches of 6 gms each, and one pouch of 15 gms are being put into one HDPE bag (High-Density Polyethylene Bag). The quantity of 15 gms is kept in a zipper pouch, on which duty is paid under Section 4A of the Excise Act on MRP. A factual contention was raised in the reply by the respondent-assessee that it is not selling poly packs of 33 small pouches directly to the customers. It is stated that the assessee is clearing only HDPE bags containing 100 poly packs, and HDPE bags are being sold to distributors or dealers. Therefore, the assessee did not make a retail sale. It is contended by the respondent that poly packs containing 33 pouches of 6 gms quantity are not group packages within the meaning of Rule 2(g) of the said Rules, and the said poly packs and HDPE bags are wholesale packages as defined in Rule 2(x) of the said Rules. Therefore, the contention is that Section 4A will have no application. 3. After hearing the respondent, the order-in-original was passed by the Commissioner. By the said order dated 19th July 2005, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the Tribunal had not considered the factual position in this case, which the Commissioner considered in detail. Learned counsel further submitted that one pouch of 15 gms quantity of chewable tobacco forms part of the poly pack on which the respondent was admittedly paying duty in accordance with Section 4A of the Excise Act. Learned counsel has taken us through the relevant provisions of the said Rules. 6. The learned counsel representing the respondent supported the impugned judgment and urged that the principles laid down by this Court in the case of Commissioner of Central Excise, Vapi2, will squarely apply. It was submitted that HDPE bags containing 100 poly packs containing 34 pouches was not meant for retail sale; therefore, it cannot be treated as a group package, and it has to be a wholesale package that is not meant for retail sale. Learned counsel submitted that there is no need to interfere with the impugned judgment, which takes the correct view. CONSIDERATION OF SUBMISSIONS 7. It is not in dispute that the respondent is dealing with chewing tobacco. From 7th April 2003, the respondent started the practice of packing together 33 pouches of 6 gms each and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat under the said Rules, there is a requirement to declare the retail price of the goods on the packages. 11. Now, we turn to the said Rules. Chapter II of the said Rules deals with the provisions applicable to packages intended for retail sale. Retail sale is defined in Rule 2(q) of the said Rules, which reads thus: (q) retail sale in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or group of individuals or any other consumer; Therefore, to attract the definition of retail sale, a commodity has to be sold, distributed, or delivered for consumption by an individual, a group of individuals, or any other consumer. Thus, the sale or distribution of a commodity to a dealer who, in turn, sells the commodity to retail dealers will not be a retail sale. 12. Rule 2(g) defines group package which reads thus: 2(g) group package means a package intended for retail sale, containing two or more individual packages, or individual pieces, of similar, but not identical (whether in quantity or size), commodities; Explanation.- Commodities which are generally the same but d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h nature that attracts any of the provisions of the said Rules, which mandatorily require the mention of retail price on the package. In case of a package that does not attract provisions of the said Rules regarding mentioning the retail price, even if the retail price is mentioned on the package, that itself will not attract sub-section (1) of Section 4A of the Excise Act. 16. However, on facts, we may not be required to deal with the issue of whether a poly pack containing 33 plus one small package was intended for retail sale. The reason is that the specific case made out by the respondent in reply to the show cause notices was that the respondent was selling HDPE bags containing 100 poly packs containing 33 plus one smaller pack has not been rejected by the Commissioner. In fact, the Commissioner seems to have accepted the contention, as seen from Clause (d) of paragraph 16 of the order-in-original. In clause (d), the Commissioner held thus: (d) Further the intentions of the assessee that HDPE bag is a wholesale package and the larger polypack packages are group packages intended for retail sale is also expressed from the fact that there is no requirement under Rule 29 of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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