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TMI Blog2023 (10) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant s own case SWAN SWEETS PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAJKOT [ 2006 (1) TMI 269 - CESTAT, MUMBAI ] 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 issue is no longer res- integra, therefore, the impugned order is not sustainable, hence, the same is set aside - Appeal allowed. - Hon'ble Member (Judicial), Mr. Ramesh Nair And Hon'ble Member (Technical), Mr. C.L.Mahar For the Appellant : Shri Dhaval Shah, Advocate appeared. For the Respondent : Shri A R Kanani, Superintendent (AR). ORDER RAMESH NAIR The issue involved in the present case is that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- 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. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we do not find any adverse effect in the principle of law on the issue in hand laid down by the Hon ble Supreme Court. Despite the substitution of Rule 2(j), the provision of Rule 34(b) of SWM (PC) Rules, 1977 remain intact, according to which there is no requirement for affixing/printing retail sale price on the package of the goods of less than 10 gram therefore, we do not find any substance in the revenue s appeal. The law laid down by the Hon ble Supreme court in the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/-, we decline to entertain the appeal. The same is dismissed accordingly, keeping open the question of law sought to be raised in the appeal. In view of the above order of the Hon ble Supreme Court, the issue is no more res-integra accordingly, the revenue s appeal is liable to be dismissed. 5.3 As regard the assessee s appeal, wherein they have challenged the confirmation of demand by the adjudicating authority under Section 11D, we find that though the appellant have raised invoice showing the total excise duty in terms of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 only, it is viewed that there is no application of Section 11D in the facts of the present case therefore, the demand confirmed under Section 11D cannot be sustained. 06. As a result, revenue s appeal no. E/1273/2011 is dismissed and assessee s appeal no. E/1234/2011 is allowed. 5. In view of the above decision which is based on the judgment of Hon ble Supreme Court in the appellant s own case, the issue is no longer res- integra, therefore, the impugned order is not sustainable, hence, the same is set aside and appeals are allowed. (Pronounced in the open court on 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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