TMI Blog2005 (9) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... of 100 ml. not intended for retail sale. One gallon packs had been prominently marked as for catering and institutional sales only : not for retail sale . Similarly, 100 ml. catering cups had the marking specially packed for catering industry; not for retail sale . 2. These appeals are in respect of valuation of ice cream in the above packs. The appellant claims valuation under Section 4 of the Central Excise Act i.e. based on its sale price/transaction value. The impugned order has held that since ice cream is a specified item under Section 4A of the Central Excise Act, the valuation must be based on Maximum Retail Price (MRP) of the ice cream. 3. The dispute is for the period March, 1999 to April, 2001. It is also on record that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wording of Section 4A(1) makes it clear that it will apply to such good in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 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. In other words, if there is no statutory requirement under the provisions of Weights and Measures Act to declare the retail price on the packages, Sec. 4A will not apply. As for example, in respect of bulk sale of ice cream to hotels/restaurants, which are not meant for retail sales as such, the provisions of the Weights and Measures Act will not apply. Chapter V of the Weights and Measures (Packaged Commodity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4A of the Act because ice cream remains a specified item, is not correct. The marking on the packages in question leaves no doubt that the consignments are not intended for retail sale. The Revenue also has no case that the clearances in question were in violation of the provisions of Weights Measures Act. If that was the case, the consignments would have been confiscated under sub-section (4) of Section 4A. Therefore, it has to be taken that it remains accepted that the clearances were not covered by the provisions of Weights Measures Act. 9. The learned Counsel is also right in the contention that once a Board Circular specifically recognized bulk sale of ice cream to hotels/restaurants as outside the scheme of Section 4A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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