TMI Blog2011 (8) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri S.K. Panda, Joint CDR ORDER Per Mathew John: The appellants are engaged in the manufacture of Chewing Tobacco falling under Sub-heading No. 2404.41 of the First Schedule to the Central Excise Tariff Act, 1985. 2. The officers of the Anti-Evasion Wing of Central Excise Commissionerate, Jaipur-II visited their factory premises by surprise on 29.9.2004 and conducted various checks and found that they manufacture four different types of packages and on the following details were inter alia printed on the pouches and the packages. 1. 12 Grms Pouch of NATRAJ Zarda with Chuna Weight 12 grams MRP Rs. 2/- per pouch MRP of Multi Piece Packag Rs.50/- of 25 pouchese 2. 6 Grms Pouch of NATRAJ Zard with Chuna Weight 6 grams M.R.P. Rs.1/- per pouch MRP of Multi Piece Package Rs.30/- of 32 pouches 3. 3 Grms Pouch of NATRAJ 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is correct they were not required under the Standards of Weights and Measures (Packaged Commodities) Rules 1977 to affix MRP on multi-piece package. If they were not required under law to do so, even if they had affixed MRP on the multi-piece packages the provisions of section 4A would not apply even if it is a product notified under section 4A and consequently provisions of section 4 of Central Excise Act were to apply to such goods like any other case and the Appellants had paid duty accordingly from 08-03-2004. This legal position stands clarified under Circular No. 411/44/98-CX dated 31-07-1998 issued by CBEC and a few decisions of the Tribunal and Higher Courts. 8. The adjudicating officer considered the submissions and gave his findings as under: A similar question arose before the Hon'ble High court, Madras as reported in 2004 (163) ELT 160 in the case of Varnica Herbs. In the case cited, herbal hair dye manufactured by the petitioner-assessee were being packed in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 'multi piece' package as under:- multi piece package means a package containing two or more individual packaged or labeled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole . The definition says 'intended for retail sale' either in individual pieces or the package as whole. That means there should be an intention of selling either the package as a whole or as individual pieces, in retail. The condition in which the goods are actually sold is not a pre-requisite for qualifying the definition. I find that the appellants are clearing the packages of smaller pouches in a larger pouch and the individual pieces are meant for retail sale by the retailers. This is a fact which is also not in dispute. It is also a fact that the said larger pouch is also capable of being sold in retail and any consumer who wishes so, can purchase the complete pouches from any retail. The fact that the appellants are 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asures Act and the rules made thereunder. Such packings will be assessed to excise duty under the provisions of Section 4 of Central Excise Act, 1944. 4.?The matter has been re-examined and it has been decided to reiterate the above instruction contained in Board's Letter F. No. 341/64/97-TRU, dated 11th August, 1997. Accordingly, the instructions dated 30-4-1998 regarding Shampoo sachets communicated to Chief Commissioner, Vadodara and some assessees may be treated to have been withdrawn. Such cases may also be decided in accordance with the instructions contained in this Circular. 5.?All pending disputes/assessments on the issue may be settled in the light of these guidelines. 6.?Field formations and trade may be advised suitably. 7.?Receipt of this Circular may please be acknowledged. 12. They also rely on the following decisions namely, (i) CCE Vs. Kraftech Products Inc-2008 (224) ELT 504 SC. (ii) CCE Vs. Kraftech Products Inc.005 (179) ELT 43(Tri-Mum) (iii) Swan Sweets Pvt 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the weight of the soap cake or the weight of the contents in a tin of talcum powder before being satisfied about the price for the item. So the argument that such commodities are sold by number is not an acceptable argument. Moreover the Apex Court has specifically overruled the decision of the Madras High Court as explained above. So there is no merit in the argument that the commodity is not sold by weight. 17. In the case of CCE Vs. Kraftech Products Inc -2005 (179) ELT 43 (Tri.-Mum), cachets of hair dye containing 3 grms each was packed into muti-piece package of 3 such units and in this case also the weight of the muti-piece package also was less than the exemption limit prescribed under Rule 34 of the Packaged Commodities Rules. 18. It is to be noted that in the present case the facts are different and the weight of the muti-piece package is not within the exempted limit. So these case laws are not applicable to the facts of the present case. 19. The next issue is whether the multi piece 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) Rules, 1977. This definition reads as under: (q) 'retail sale', in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities or consumption by an individual or a group of individuals or any other consumer . 22. The declaration to be made on every package is prescribed in Rule 6 of the said Rules reads as under:- 6.?Declaration to be made on every package - (1)?Every package shall bear thereon or on a label securely affixed thereto a definite, plain and conspicuous declaration, made in accordance with the provisions of this Chapter as to - (a) the name and address of the manufacturer, or where the manufacturer is not the packer, of the packer or with the written consent of the manufacturer; (b) the common or generic names of the commodity contained in the package; Explanation :- Generic name in relation to a commodity means the name of the genus of the commodity, for example, in the case of common sale, sodium chloride 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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