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TMI Blog2024 (8) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- The same issue decided in the appellant s own case SWAN SWEETS PVT LTD VERSUS C.C.E. S.T. -RAJKOT [ 2023 (7) TMI 538 - CESTAT AHMEDABAD] where it was held that ' In the identical facts in the 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.' In view of the above decision in the appellant s own case the issue is no longer res-integra - the impugned orders are not sustainable and the same are set aside - appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly decided by passing the following orders:- (i) Final Order No. A/11476-11478/2023 dated 10.07.2023 (ii) Final Order No. A/12261- 12266/2023 dated 11.10.2023 5. For the ready reference order dated 11.10.2023 is reproduced below:- 4. We have carefully considered the submission made by both sides and perused 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, [every person who is liable to pay duty under this 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 wholl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such amount, in accordance with the provisions of section 11B and such person may make an application under that section in such cases within six months from 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. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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