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2024 (2) TMI 498 - AT - Central Excise100% EOU - method of valuation - applicability of section 4A of the Central Excise Act (CEA) 1944 - removal (of instant coffee) to institution or not - clearance of excisable goods only in bulk/pouches or tins to their C&F agents, who in turn sell the same in bulk to institutions for consumption or for use in other products - time limitation - intent to evade - HELD THAT:- This is a case where depending on the nature of packet size, the applicability of Sec 4A would have to be determined. If the sale is to the institution directly, Sec 4A would not be applicable. However, when the sale is through C&F agent, the question is whether it could be covered within the ambit of Sec 4A or otherwise. From the submissions made, it is obvious that C&F agents were only acting as freight and forwarder and the goods were all along meant for institutional buyers only. Therefore, this transaction could be considered in the nature of institutional sale in terms of explanation to the Rules. There is nothing contrary on record to prove that these goods were not meant for institutional buyers or there was any resale by such buyers. Therefore, the goods would be covered under the exemption. Similarly, for packet sizes of less than 10gm also Sec 4A would not be applicable. For small packets cleared in bulk, in a packed condition, the Appellants have relied on the judgment of COMMISSIONER OF CENTRAL EXCISE, RAJKOT VERSUS M/S MAKSON CONFECTIONERY PVT. LTD. [2010 (9) TMI 10 - SUPREME COURT], whereby the Hon’ble Supreme Court upheld the decision of the Tribunal holding that a package containing about 100 or more individual pieces of an article like éclairs brand chocolate, each weighing 5.5gm, would qualify for exemption under Rule 34 of Standards of Weights & Measures (Packaged Commodities) Rules. Therefore, relying on this ratio, even if the instant coffee of pouches less than 10gm were cleared in bulk and not meant for retail sale, it would be exempted under Rule 34 and therefore, will not attract Sec 4A of Central Excise Act 1944. Time Limitation - no intent to evade - HELD THAT:- The element of intention to evade is clearly missing. It is evidently a case of interpretation where they were under the impression that despite having C&F agents involved in transaction to the institutional buyers, they were still not covered within the ambit of Sec 4A. Therefore, in the facts of the case, the department has not been able to establish the grounds for which extended period can be invoked. There was no requirement for the Appellants to follow Sec 4A for determining the duty for the payment of Central Excise Duty on the goods cleared to DTA - the Impugned Order set aside - appeal allowed.
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