TaxTMI 
TaxTMI 
2009 (4) TMI 667
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....that retail sale is not involved in all such cases. In accordance with the provision of Standards of Weights and Measures Act, 1976, there is no need to print maximum retail price on the fans so sold, because the fans will remain the property of the department of the government which purchases them. Coming to such a conclusion, the show cause notice was issued to the respondent on the ground that they have contravened the provision of Section 4 by resorting to valuation under Section 4A. Inasmuch as DGS & D insistence upon assessee to adopt Section 4A valuation is not viable in the provisions of Central Excise law. Hence, it was concluded that the, assessee was liable to pay differential duty under the provisions of Section 11A of Central E....
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....nsumers. Rule 2A of chapter II of the Standards of Weights and measures (Packaged Commodities) Rules, 1977 provides that Chapter II (Provisions applicable to packages intends for retail sale) shall not apply to packaged commodities meant for industrial consumers or institutional consumers. Explanation (a) of this Rule provides that institutional consumer means those consumers who buy packaged commodities directly from the manufacturers/packers for service industry like transportation, railways, airways, hotel or any other similar service industry. Hence, the government department providing service to the people of India, is an institutional consumer. On both the counts i.e., impugned sale is not a retail sale and the supplies made is for in....
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....responding MRP value under Section 4A. (iv) If the abatement was permitted under Section 4A taking rate contract as MRP that would be mean unjustified additional profit margin which otherwise has gone to wholesaler or retailer under Section 4A. (v) In view of the above, since the assessee is selling the goods at lower rate directly to the consumer under rate contract through DGS & D, the assessees are selling the goods as per assessable value under Section 4 that is why the abatement is not eligible and the duty should be paid as per Section 4 of Central Excise ....
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.... Excise & Customs letter dated 28-2-2002 which was in respect of the valuation of telephone instrument supplied in bulk to telephone department will be done as per the Section 4 of the Central Excise Act and the same will be applicable in this case. It is seen that the learned Commissioner (A) has given a detailed findings on the question of fact as well as on the question of applicability of the provisions of the Rule 2A of the Standards and Weights of Measures Act and Rules made thereunder clearly. We may reproduce the said findings. "6. Therefore, the question is whether the supply to the various government departments is being done by the appellant in bulk or in retail. The Hon'ble CESTAT in the case of Purisons Engineers Pvt. Ltd....
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....would come under the excluded category. He concluded that the factual matrix of this case is analogous to the Jayanthi Food Processing (P) Ltd. case cited supra with reference to the retail sale. In the Jayanthi Food Processing case, the Hon'ble Supreme Court concluded that the Standard Weights and Measures Act would not be applicable both because the 4 litre ice-cream package (a category which was excluded by way of example by the CBEC Circular) was not a retail package and the sale was not a retail sale as per the definitions of the SWM Act. The original authority held that the sale is not a retail sale because government departments are neither individual nor group of individual consumers. The Hon'ble CESTAT judgment in the Purisons case....
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....Legal Metrology Department. Therefore, on both counts, the original authority's order will have to be set aside." 5.2 It can be seen from the above reproduced portion that the findings given by the learned Commissioner (A) as regards the applicability of whether government department fall under the definition of 'service industry', is correct and in accordance with the law. Further, we find that the government of Andhra Pradesh i.e., the Controller of Legal Metrology Department, on a specific request from the respondent herein informed them that supplies to DGS & D will be covered under Standards and Weights of Measures Act, which is reproduced below : GOVERNMENT OF ANDHRA PRADESH From: To: The Controller, M/s. Hy....