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2023 (10) TMI 1161 - CESTAT ALLAHABADClearance of footwear (not intended for retail sale) - denial of benefit under N/N. 12/2012-CE dated 17.03.2012 (Entry No.180) - denial of benefit on the ground that the goods cleared are not intended for retail sale - applicability of Section 4 or Section 4A of Central Excise Act, 1944 - Penalty of Rs.25 lakhs on the Secretary Shri Ajay Agarwal. The stand taken by the revenue is that since the goods were cleared to institutional buyers, provisions of Legal Metrology (Package Commodities) Rules, 2011 were not applicable in the present case and therefore, assessment should be as per provisions of Section 4 of Central Excise Act, 1944. HELD THAT:- The issue is no more res-integra and the Hon’ble Supreme Court in CCE, Panchkula Vs M/s Liberty Shoes Ltd. [2015 (12) TMI 1159 - SUPREME COURT] has held that Once we find that the footwear is an item which is specified under Section 4A, which is covered by Weights and Measures Act and Rules, and MRP was fixed on the products supplied, which were not exempted under Rule 34 of the Rules, the provision of Section 4A of the Act shall stand attracted. It is found that retail sales price was embossed on footwear supplied to Arm Forces and Paramilitary forces. Therefore, by respectfully following the judgement of Hon’ble Supreme Court in the case of CCE, Panchkula Vs M/s Liberty Shoes Ltd. the assessment would be under the provisions of Section 4A of the Central Excise Act, 1944. Penalty of Rs.25 lakhs on the Secretary Shri Ajay Agarwal - HELD THAT:- Since the entire demand against the main Appellant is found to be unsustainable, the penalty imposed on the Appellant No.2 cannot be justified. Accordingly, the same is set aside. The impugned order cannot be sustained and is accordingly set aside - Appeal allowed.
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