TMI Blog2024 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There are no merits in the impugned order - appeal allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) A letter on record, for the Appellant Shri Manish Raj, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No.271/APPL/NOIDA/11 dated 23.11.2011 of the Commissioner (Appeal) Customs and Central Excise, Noida. By the impugned order, Order-in-Original No.29-30/N-IV/2004 dated 30.11.2005 holding as follows has been upheld:- ORDER 1. I confirm demand of Central Excise duty amounting to Rs 6,96,172/- (Rs 4,80,728/- +Rs 2,15,444/-) (Rs Six Lakh Ninety Six Thousand One Hundred and Seventy Two only) short paid on the goods cleared in combination packs during the period from April 04 to October 04 and order for recovery of the same from M/s Videocon International Ltd, 1-d Udyog Vihar, Greater Noida under Section 11A of Central Excise Act, 1944. 2. I demand interest on above amount in terms of Section 11Ab of the Central Excise Act, 1944. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een taken up for consideration, after hearing Shri Manish Raj learned Authorized Representative for the revenue. 3.4 Learned authorized representative submits that the issue in the appeal has been decide in appellants own case as per the order reported at [2013 (295) ELT 624 9T-Del)]. Following the said decision appeal should be dismissed. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records following findings: 4.4 The main issue that arises is that even though combination package is recognized in the P.C.Rules, does the scheme of Valuation under Section 4A incorporate the valuation of such combination packages. 4.5 The basic provision for valuation of all excisable goods with reference to their value is laid down under Section 4. Section 4A is a overriding (non obstante) provision which states that valuation would not be done by the general method of valuation in relation to those goods that have been notified under this section, and which are goods covered under the provisions of the Standards of Weights and Measures Act, 1976. It follows that if any excisable goods has to be valued unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sale price, has to be abated from the retail sale price declaration, made by the manufacturer on the package, for arriving at the assessable value. Each commodity has its own market and this percentage would depend on the prevailing condition in the market under which costs are incurred or profit margins generated in the trading down stream between the manufacturer and the retailer. It is not open to an assessing or adjudicating authority to adopt the level of abatement for any item that is not specifically mentioned in the notification. Since abatement for goods sold in combination packages have not been specified in the notification issued under section 4A of the Act, such combination packs cannot be valued under the said Section by adopting the abatement level for any individual commodity. It is possible that an account analysis may indicate a different abatement level for a combination package even though the individual commodities on the package attract a uniform abatement level. In the net result, in the scheme of notification issued under Sec-4A of the Act, it is not possible to assess Combination package under MRP based valuation procedure laid down under Sec.4A of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es with a combined retail sale price of razors and blades. The manufacturers in the G.S. Enterprises case had argued that MRP valuation cannot be made on notional basis but on the other hand, the department argued that the MRP being adopted for the assessment of the razors was the same as is declared on the razors when they are not removed in combination package. The Tribunal held that the razors in the combination package should be valued on the basis of the MRP declaration made on individual packaged of razors 4.13 I find that the G.S. Enterprises decision (supra) which has been upheld by Supreme Court has great relevance for deciding the present case. The appellants have been removing the different commodities involved in individual packages and the retail sale prices are declared on such packages. Following the CEGAT s Decision in G.S. Enterprises case, I find that the original adjudicating authority has correctly adopted the individual price declarations of the different commodities contained in the combination package for assessing the goods under Section 4A of the Act. 4.3 We find that the issue is no longer res-integra. In the appellants own case Delhi Bench of this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the duty on the basis of their MRP. There is also no dispute that each of the items in the combination pack was individually packed and while the individual items of the combination pack were not carrying individual MRP on them, there was MRP for the combination. There is also no dispute that the combination packs were not further packed in a bigger pack and according to the Appellant were being delivered together tied by a ribbon. The point of dispute is that as to whether in respect of clearances of such combination packs , duty liability is to be determined in respect of each item in the combination on the basis of its individual MRP or duty is to be calculated by treating the combination as one item on the basis of its combined MRP. 6. Under Section 3(1) read with Section 5A of the Central Excise Act, 1944, central excise duty is payable on the goods manufactured in India at the rates specified in the schedule to the Central Excise Tariff Act, 1985 read with exemption notification, if any issued, under Section 5A of the Central Excise Act. When the rate of duty is ad valorem, the value is taken as - (a) tariff value if the tariff value has been fixed under Section 3(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pack, as the quantum of abatement notified for each item may be different and the rate of duty applicable for each item in the combination pack may be different. The judgment of the Tribunal in the case of Millenium Appliances India Ltd. (supra) has not considered these aspects and has gone only by the Board s Circular No. 673/64/2002-CX., dated 28-10-2002, which in our view, is applicable only in respect of the multi-piece package i.e. package containing two or more consumer items of the same kind and this circular, in our view, cannot be applied to a combination pack. Though combination pack are recognized in the SWM Rules, they have no recognition in the Central Excise Law. We are of the view that it is the judgment of the Tribunal in the case of G.S. Enterprises (supra) which has been affirmed by the Apex Court, which is applicable to the facts of this case and accordingly, the duty payable in respect of the clearances of the combination pack of dissimilar item, both of which notified under Section 4A have to be determined on the basis of their individual MRPs and not on the basis of MRP of the combination pack, which in our view, has no relevance for assessment of duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4A. Valuation of excisable goods with reference to retail sale price. - (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 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 sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in Section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. (4) If any manufacturer removes from the place of manufacture any excisable goods specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with soaps for free supply to buyers of soap. It was held that the additional package of bindis had no connection to the price of soap, the price of bindis is not includable in the assessable value of soap. In the Surya Foods Ltd. v. CCE (supra) and cited supra, it was held that when selling certain quantities of biscuits, the appellant supplied small quantities of certain other varieties free and in such situation the value of free supplies is not includable in the assessable value. The Asstt. Controller of Legal Metrology has informed the appellants regarding legal requirements in respect of combination packages but in order to decide this issue it is sufficient that the products are covered under Section 4A and also the Standards of Weights and Measures Act. Since the Revenue has not contested that the products in question are covered under Section 4A and Standards of Weights and Measures Act, we hold that the products are assessable under Section 4A. In view of the decided case laws, there will not be any duty liability on the gel supplied free, hence there is no merit in the impugned order. Therefore, we allow the appeal with consequential relief. 5 . We find no merit in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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