TMI Blog2006 (6) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... ce package as per the views of this bench? (ii) Whether the exemption under Rule 34(b) of Standards of Weights Measures (Packaged Commodities) Rules, 1977 available for individual pieces is relevant for deciding if the assessment has to be done under Section 4 or 4A of the Central Excise Act? (iii) Whether the assessment of the impugned products should be done under Section 4 or Section 4A of the Central Excise Act? - HON'BLE S.L. PEERAN AND T.K. JAYARAMAN, MEMBERS B.V. Kumar and B. Venugopal, Advocates, for the Appellant. R.K. Singla, JCDR, for the Respondent. Order T.K. Jayaraman, Member 1. The stay application and appeal (E/280/2006) have been filed in respect of OIA No. 129/2005 dated 30-12-2005 passed by the Commissioner of Central Excise (Appeals-II), Hyderabad. The stay application is allowed and the appeal is taken up for regular hearing along with another appeal (E/965/2005) filed against the OIA No. 94/2005 dated 29-7-2005 passed by the same Commissioner (Appeals), wherein full stay and waiver of pre-deposit have been granted. Since, the issues involved in both these appeals are one and the same, we are passing a common order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4A of the Central Excise Act 1944, the impugned goods are not meant for retail sale in the form in which they are cleared. To put it differently, the poly bags/pet jars are wholesale packets. They are to be sold in wholesale only as mentioned in the packages themselves. Since these packages are not meant for the ultimate consumer, there is no requirement for the appellants to print the MRP on the packages. Once there is no requirement to print the MRP, the assessment should be done only under Section 4 and not 4A. Relying on the following Circulars, he urged that even if a commodity is notified under Section 4A and if there is no statutory requirement under the law for declaring the MRP on the packages cleared by the manufacturer, then the assessments have to be done under Section 4 and not under Section 4A. (a) Circular/Letter F. No. 341/64/97-TRU, dated 11-8-1997 (b) Circular/Letter F. No. 411/44/98-CX, dated 31-7-1998 (c) Circular/Letter F. No. 625/16/2002-CX, dated 28-2-2002 (ii) Individual Eclairs weighing 5.5 gms/4 gms. are twist wrapped. Individual Eclairs are packed into Pet Jars, weighing 825/720 gms. These Pet Jars (15/12) are put in a carton and cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer with regard to the goods manufactured by him and the marketing pattern he would follow, is important. (vi) The individual pieces of Eclairs weighing 5.5 gms. clearly fall within the exemption provided under Rule 34(b) of the SWM(PC) Rules for the following reasons:- (a) The net weight of each piece of confectionery in the package is 5.5 gms/4 gms., which is less than the weight specified in Rule 34(b), i.e., 10 gms. (b) Based on the reference made by ITC explaining the marketing pattern of the confectionery manufactured and sold, the Department of Legal Metrology, Bangalore, had confirmed that the individual confectionery is required to be sold by weight. (c) In terms of the National Industrial Classification, confectionery is required to be packed and sold by weight, viz., Kgs. and not by numbers. (d) The new 8 digits Central Excise Tariff also mentions weight as the unit of measurement, against confectionery items falling under Chapter 17. (vii) Further, the learned Advocate relied on the following case-laws :- Caress Beauty Care Products v. CCE, Chennai - 2004 (164) E.L.T. 53 (Tri.-Chennai) Kraftech Products Inc. v. CCE, Vapi - 2004 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he weight comes to 825 gms. The weight of the Poly Bag is 220 gms. It is very difficult to hold that a Pet Jar weighing 825 gms. or a Poly Bag of 220 gms. is a wholesale package. In any departmental store, these Pet Jars/Poly Bags are available for the purchase of retailers. It is not necessary that the ultimate consumer would purchase only one piece. There does not appear to be any bar for selling the Pet Jars/Poly Bags to ultimate consumers. Normally, one purchases one jar or poly bag for consumption of a family. By no stretch of imagination, it can be held that the purchase of a Pet Jar or a Poly bag by an individual constitutes a wholesale purchase. The appellants submitted that they clear the goods in Cartons, each Carton contains 15 Pet Jars or 72 Poly Bags. One of their arguments is that neither these Cartons nor the individual Pet Jar or Poly Bag is meant for the ultimate consumer. It was urged that the intention of the manufacturer is important and the same is that only the single piece is meant for the ultimate consumer. We find that this line of argument is very much repugnant to common sense and also does not reflect the correct legal position. In our view, the Poly Bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 6, as given below :- 6. We have perused the records and have considered the submissions made by both sides. The appellant manufactures telecom instruments and sells those instruments to several parties including DOT/BSNL. Telecom instruments are covered by the provisions of Packaged Commodities Rules. A major requirement under this Rule is that maximum retail price should be affixed on the goods in question. There is no dispute that the telecom instruments involved in the present dispute were cleared in terms of Packaged Commodities Rules. It is also specifically noted that MRP has been declared on the individual cartons . Telecom instruments are specified goods under Section 4A of the Central Excise Act also. Section 4A specifically excludes the application of provision of Section 4 of the Central Excise Act to goods specified under Section 4A. In these circumstances, we are of the view that telecom instruments in question fell for valuation under Section 4A. They were so valued and duty paid at the time of their removal from the factory. That they were sold in wholesale to a big customer like DOT/MTNL/BSNL against contract prices is altogether irrelevant for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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