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TMI Blog2004 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... tents of all commodities less than 10 gms., required a declaration under Rule 17 of the Standards of Weights Measures (Packaged Commodities) Rules, 1977 (In Short PCR, 1977) and were not eligible for exemption under Rule 34(b) of PCR, 1977; that the Commissioner, under the impugned Order, has held that the provisions of Rule 34 of PCR, 1977, are unambiguous in nature and the exemption applies to any package containing a commodity; that he has accordingly did not confirm the demand of Central Excise duty, etc. The learned D.R. mentioned that Rule 2(j) of PCR, 1977, defines 'multi-piece package' means a package containing two or more individually packaged or labelled pieces of the same commodities of identical quantity intended for retail sale, either in individual piece or the package as a whole; that Rule 6 of PCR, 1977 requires that every package shall bear thereon or on a label securely affixed thereto a definite plain and conspicuous declaration; that retail sale price of the packages is one such - detail to be declared by a manufacturer; that Rule 34(b) of PCR, 1977, provides that the "nothing contained in these Rules shall apply to any package containing a commodity if the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in C.C.E. v. M.K.R. Frozen Food Export, 1998 (103) E.L.T. 383 (T) and C.C.E. v. Swastic Coaters Pvt. Ltd., 1999 (107) E.L.T. 533 (T). He also submitted that the decision in Varnica Herbs is per incuriam being contrary to the specific provisions of the Rules; that Rule 34(b) provides that the declaration in respect of maximum retail price is not required if the package contains less than 10 gms. or less than 10 ml.; that if the contention of the Revenue is that the judgment upholds the view that even if the multi-piece package contains less than 10 g/10 ml., the package requires declaration of M.R.P. and hence covered by Section 4A of the Central Excise Act, then the judgment is per incuriam, being in ignorance of the terms of a statute or of a rule having the force of a statute. Reliance has been placed on the decision in Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38 wherein the Supreme Court did not "uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld their contention in the following decisions : (i) C.C.E., Daman v M/s. Kraftech Product INC. - Order No. A/699/WZB/2004/C-I, dated 10-5-004; (ii) Kraftech Products Inc. v C.C.E., Vapi - Order Nos. A/817-18/WZB/2004/C-III, dated 29-7-2004 [2004 (173) E.L.T. 508 (T)]. 6.1We have considered the submissions of both the sides. Section 4A of the Central Excise Act provides that the Central Government may specify any goods, in relation to which it is required, under the provisions of the Standards of Weights Measures Act, 1976 or the Rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail price and the value of such goods shall be deemed to be the retail sale price declared on such goods less such amount of abatement as may be allowed. It is thus apparent from the provisions of Section 4A, that the value shall be deemed to be the retail sale price only if : (a) The Central Government specifies any excisable goods by notification in the Official Gazette in this regard; and (b) It should be required under the provisions of Standards of Weights Measures Act or Rules made thereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that since the combined weight of 3 units of the impugned goods is less than the prescribed weight of 20 gms, the Commissioner (Appeals) has rightly concluded in his impugned Order that the Respondents are eligible for exemption under the said Rule 34 and consequently they are entitled to assessment under Section 4 of the Central Excise Act, 1944 instead of under Section 4A of the said Act." 6.4 We also observe that Tribunal again vide Order dated 29-7-2004, in the case of Respondents and in respect of impugned products themselves has held that the second Proviso to Rule 34 "relates to declarations in respect of Maximum Retail Price, net quantity. When these two proviso of Rule 34(b) are read together it is clear that the declaration in respect of Maximum Retail Price and the net quantity is not required to be made if the net content of the package is less than 10 gms. or 10 ml. Therefore, the Appellants' multi-piece packages having only 9 gms. in the multi pack under consideration is clearly exempt from the requirement of declaration of MRP under Standards of Weights and Measures Act. In other words, it is not obligatory to declare M.R.P. of such packages." The Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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