TMI Blog2012 (12) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for determining the assessable value under Section 4A. Rule 15 of the SWM Rules refers to the “combination pack” of dissimilar items which are actually packed in a bigger pack on which MRP is required to be declared. In this case, admittedly the combination packs of Referigerator with water purifiers, Refrigerators with washing machines or CTVs with VCD players are not actually packed in a bigger package. The “combination packs” in this case have to be treated as combination sales as a marketing strategy under which on purchase of two items refrigerator with washing machines, refrigerator with water purifier or CTVs with VCD players, the price charged is less than their individual MRP. Such combination sales, in our view, cannot be treated as “combination pack” or packaged commodity as understood in SWM Rules and have to be treated as sale of individually packed items at a combined price - Decided against assessee. - E/1516/2005 - Final Order No. A/1367/2012-EX(BR)(PB) - Dated:- 11-12-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri B.L. Narsimahan, Advocate, for the Appellant. Shri Sanjay Jain, DR, for the Respondent. ORDER The facts leading to this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant company under Section 11AC of the Central Excise Act, 1944. 1.2 The first show cause notice was for demand of allegedly short paid duty in respect of the clearances of the combination pack of refrigerator with washing machine and the second show cause notice was for demand of allegedly short paid duty in respect of the combination packs of refrigerator with washing machines, refrigerator with water purifier and CTVs with VCD players. 1.3 Both the show cause notices were adjudicated by the jurisdictional Dy. Commissioner by a common order-in-original dated 30-11-2003 by which the above mentioned duty demands were confirmed along with interest and besides this, penalties of equal amounts were imposed on the appellant company under Section 11AC of the Central Excise Act, 1944. 1.4 On appeals being filed before the Commissioner (Appeals), the same was dismissed vide order-in-appeal dated 22-1-2005. The Commissioner (Appeals) while dismissing the appeal observed that since the notification issued under Section 4A does not specify the abatement for combination pack, in the scheme of the notification issued under Section 4A, it is not possible to assess combination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade from offering various schemes to promote their products and that in view of this, the impugned order is not sustainable. 4. Shri Sanjay Jain, Id. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and pleaded that the Board s Circular dated 28-10-2002 is in respect of multi-piece package i.e. the packages containing two or more of the items of the same kind and the same is not applicable in respect of combination pack, which are the package of its dissimilar items, that the Commissioner (Appeals) has rightly observed that the scheme of valuation under Section 4A cannot be applied in case of combination pack of dissimilar items, where the abatements notified for different items may be different and the rate of duty applicable for different items may be different, and that in the facts of the case, it is the judgment of the Tribunal in the case of G.S. Enterprises (supra) which has been upheld by the Apex Court, which would be applicable. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. The undisputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty is payable on any excisable goods at the time of their clearance from the factory or bonded warehouse and the same is payable irrespective of whether the goods are cleared individually or in combination with other items being manufactured or are cleared on sale or are cleared for free distribution for the purpose of sale promotion. Thus, when a manufacturer is manufacturing two excisable goods A and B, the duty would be chargeable at the time of their clearance, irrespective of whether these items are cleared individually and thereafter are sold as combination pack or are cleared from the factory in a combination pack and since the rate of duty and assessable value of different items may be different, the duty payable would have to be determined in respect of each item separately. A combination pack of dissimilar items which are sold as a combination as a marketing strategy, have no separate identity in central excise law. In our view, therefore, if a manufacturer manufactures two products A and B, both notified under Section 4A and in respect of these products, there are separate MRP and the same are cleared as a combination pack, the duty has to be determined in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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