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2019 (5) TMI 871 - AT - Central ExciseMethod of Valuation - clearance of tooth brushes in combo pack/bulk/naked condition to manufacturer of Toothpaste for free distribution by inserting the brush in the tooth brushes pack - valued u/s 4 or u/s 4A of CEA - case of the department is that the tooth brushes so cleared was required to be assessed under Section 4A of the Central Excise Act, 1944. i.e. on MRP basis, on the basis that the toothpaste manufactured by the appellant for their customer were also packed in the blister packing in 1/2/3/4 prices in pack printed with MRP at it, as per Standards of Weights and Measures Act and were assessed as per section 4A of the Central Excise Act, 1944. HELD THAT:- The facts is not under dispute that the tooth brushes manufactured and supplied by the appellant were cleared either in bulk form or combo pack or in naked condition that means without any retail packing. Goods were supplied to tooth paste manufacturer who in turn used these tooth brushes for making a combo pack with tooth paste for free supply, therefore, the tooth brushes cleared by the appellant was neither sold as such in retail either by the appellant or the buyers i.e. M/s Colgate Palmolive (India) Limited, Oral care etc. In this identical fact the issue was considered by the Hon’ble Supreme Court in the case of JAYANTI FOOD PROCESSING (P) LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAJASTHAN [2007 (8) TMI 3 - SUPREME COURT] where it was held that valuation cannot be done u/s 4A of CEA. Relying on the Hon’ble Supreme Court judgment the Mumbai Bench of the Tribunal in the case of NESTLE INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GOA [2017 (10) TMI 203 - CESTAT MUMBAI] also held that promotional pack of maggi noodles supplied free with Packet of Tata Tea and such packs of maggi noodles were not bearing MRP with declaration “free with Tata Tea”. Therefore, provisions of Standards of Weights and Measures Act, 1976 and Rules made there under would not apply on such supplies. Thus, the tooth brushes supplied by the appellant which is not for retail sale but for free supply by the tooth paste manufacturer will not be valued under Section 4A in the hands of the appellant - the value adopted by the appellant under Section 4 is correct and legal which does not need any interference. Appeal allowed - decided in favor of appellant.
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