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TMI Blog2011 (8) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... Zard with Chuna Weight 3 grams M.R.P. Rs.0.50 per pouch MRP of Multi Piece Package Rs.12/- of 24 pouches 4. 6 Grms Pouch of NATRAJ Zard with Chuna Weight 6 grams M.R.P. Rs.1/- per pouch MRP of Multi Piece Package Rs.35/- of 35 pouches 3. Chewing Tobacco has been notified under Section 4A of Central Excise Act w.e.f. 1.3.2003 vide S.No. 24A of Notification No. 13/2000-CE(NT) dated 1.3.2002. It was observed that the appellants had cleared Chewing Tobacco and paid Central Excise duty by adopting value as arrived at under Section 4A of Central Excise Act, 1944 on the basis of MRP on all types of multi-piece packages (3 gm., 6 gms., 12 gms.) up to 7.3.2004. However, with effect from 8.3.2004 the appellants stopped payment of Central Excise duty adopting value under Section 4A of Central Excise Act, 1944 on multi piece packages containing 3 gms and 6 gms pouches and instead started paying duty adopting value under Section 4 of Central Excise Act, 1944. The appellants continued to pay Central Excise duty on 12 gms. Pouch under Section 4A of Central Excise Act, 1944. 4. Under Rule 34 of Standards of Weights and Measures (Packaged Commodities) Rules 1977, if any goods are sold by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sachets of 8 gms in weight in Photo Protective Pouch and six such pouches were being packed in a Mono Carton. The contention of the petitioner was that merely because sachets were placed in a mono-carton that would not make the pack a multi-piece package. The assesse also claimed the benefit of exemption under Rule 34 ibid. The Hon'ble Court after considering the matter held that articles kept in separate pouches by the petitioner could be termed as multi piece package in view of provisions contained in Rule 6 ibid, which requires every retail package to contain the net quantity and the maximum retail price read with the definition of multi-piece package given in Rule (j) ibid. The Hon'ble Court has further held that even though the net weight of a commodity might be less than 10 gms., but if it was evident that article was not intended to be sold either by weight or by measure as contemplated under Rule 34(b) ibid, then benefit of Rule 34(b) ibid will not be applicable. The facts of the present case are identical to Varnica Herbs case. In this case also small packs of 3 gms and 6 gms are not intended to be sold either by weight or by measure." 9. Aggrieved by the order the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re selling these goods to the traders does not in any way effect this property of the package. It quite clearly emerges that the package containing number of pouches of chewing tobacco is covered by the definition of multi piece package as contained in the Packaged Commodity Rules. The packages being cleared by the appellants are very much covered by the definition. Circular No. 492/58/99-CX dated 2.11.99 issued by the CBEC also quite clearly states that declaration of retail sale price of multi piece packages and individual pieces contained in such a multi piece package (if the individual pieces are capable of being sold separately) is statutorily required. The said Circular goes on to state that such packages are required to be assessed in terms of Section 4A of the Act." 10. Aggrieved by the order of Commissioner (Appeal), this appeal is filed before the Tribunal. 11. The Appellants rely on CBEC Circular 411/44/98-CX dated 31-07-98; "Subject : Charging of excise duty with reference to maximum Retail Price - Reg. I am directed to say that doubts have been raised as regards charging of excise duty with reference to maximum retail price under Section 4A of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt Ltd Vs. CCE -2006 (198) ELT 565 (Tri-Mum) (iv) CCE Vs. Makson Confectionary Pvt. Ltd-2010(259) ELT5 SC 13. Per Contra the Ld JCDR points out that in the case of Kraftech Products Supra, was of hair dye packed in individual sachets containing 3 grms and multi piece packet contained three such packages only and thus the total weight of the multi-piece package itself was below 10 grms which is not the case in this case. The Ld. JCDR relies on the decision of Madras High Court in Vernica Herbs Vs CBEC-2004 (163) ELT 160. 14. We have considered the facts of this case and the various decisions of this Tribunal and the Higher Courts quoted by either side. 15. In the case of Kraftech Products (2008 (224) ELT 504 SC) hair dye in 3 grm sachets packed into multi-piece package of three such sachets was under dispute. The Apex Court did not accept the argument that the goods were sold in numbers and accepted the contention of the assesse that the goods were sold by weight. In para 23 the Apex Court observed as under: "23.?We have noticed hereinbefore that each package offered to sell to the customer contains three sachets. Net weight of all the three sachets are stated thereon. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iece package is a Retail package or not. This matter has been examined at length by the larger Bench of the Tribunal in the case of Swan Sweets Pvt Ltd. In this case chocolates weighing 4 gms each was packed in a jar of 125 such chocolates. In that case the assesse had not affixed MRP for the jar as a whole. So it was very evident that the manufacturer did not intend the jar to be sold in Retail. Extracts from para 1.2 and para 2.5 of the order are relevant which are reproduced below: Extracts from para 1.2 of the order : "(e) The whole sale pack in which the individual Toffy Max Caramel/Chocolate are packed carries, inter alia, the following declaration on it : Wholesale Package MRP 50 paise per piece (inclusive of all taxes) Net Weight 500 g (125 Units) Mfg. ........ Batch No. ........" Extracts from para 2.5 of the order: "If the plastic jar or plastic bag, in which the Toffees are packed, are packages intended for retail sale, the law requires that the Maximum Retail Price (inclusive of all taxes) of the said jar or bag is to be printed on them. Since the appellants never intended the jar or bag to be sold to the retail consumers as such, the Maximum Retail P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ride is the generic name. (c) the net quantity, in terms of the standard unit of weight of measure, of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package; (d) the month and year in which the commodity is manufactured or pre-packed. (e) the retail sale price of package; (f) where the sizes of the commodity contained in the package are relevant, the dimensions of the commodity contained in the package and if the dimensions of the different pieces are different, the dimensions of each such different piece; (g) such other matters as are specified in these rules." It is to be noted that as per Rule 2A of the said Rules the expression 'package' in Rule 6 shall be construes as package intended for retail sale. 23. So in the case before us the Appellant was required under law to declare MRP on the multi-piece package and the Appellant was doing so. Further this commodity was notified for levy of excise duty based on valuation as per section 4A of the Central Excise Act. Thus both the legal requirements for applying section 4A were satisfied and hence Central Excise duty should have been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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