TMI Blog2012 (6) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 both pre and post 13.01.2007. The Commissioner shall also give finding on limitation. - E/1068/2010-Mum - A/342/12/EB/C-II - Dated:- 21-5-2012 - S S Kang, Sahab Singh, JJ. For Appellant: Shri K M Mondal, Special Counsel For Respondent: Shri V S Nankani, Adv. Per: Sahab Singh: This Revenue appeal arises out of order-in-original no. 05/CEX/2010 dt. 5 th March 2010 passed by the Commissioner of Central Excise, Pune-I dropping the demand of duty of Rs.2,26,07,051/- raised vide Show Cause Notice dt. 19.06.2009. 2. The brief facts of the case are that respondent-assessee is engaged in the business of manufacture and sale of various cosmetics products such as hair dye, shampoo, colourants, skin care etc. falling under chapter 33 of the Central Excise Tariff Act, 1985. These goods are assessed to duty by the respondent-assessee in terms of section 4A of the Central Excise Act, 1944. 3. Based on information, the Directorate General of Central Excise Intelligence, Pune, Regional Unit searched the factory premises of respondent-assesssee and seized various documents under panchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding affixation of MRP are not applicable to the Technical Professional Products of the assessee-company and hence these products are liable to be assessed to duty under section 4 instead of Section 4A of the Central Excise Act, 1944. 7. After completion of the necessary investigation a show-cause notice dt. 19.06.2009 was issued to the respondent-assessee by Additional Director General DGCEI, Mumbai General Unit alleging contraventions of provisions of Section 4(1)(a) of the Central Excise Act, 1944 and Rules 4, 6 8 of the Central Excise Rules, 2002 and demanding duty of Rs.2,26,07,051/- inclusive of Education Cess of Rs. 5,52,907/- covering the period from 01.06.2004 to 30.04.2009. After getting the reply of the show cause notice and granting the personal hearing to the respondent-assessee, the Commissioner passed the impugned order against which the Revenue is in appeal. 8. We have heard at length Shri K.M.Mondal, learned Special Counsel for the Revenue and Shri V.S.Nankani, learned Advocate for the Respondent. 9. At the outset, Shri K.M.Mondal invited our attention to para 25 and 27 of the show-cause notice and submitted that duty demand relates to Technical Profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as hair color, hair styling, hair texture to the customers. Referring to Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 as it stood before 13.01.2007, he submitted that as per this Rule nothing contained in these rules shall apply to any package containing a commodity if the marking on the packing unambiguously indicates that it has been specially packed for the exclusive use of any industry as raw material or for the purpose of servicing any industry, mine quarry. Since the Technical Professional Products were meant for servicing salon industry, these products were outside the purview of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 prior to 13.01.2007. As far as the position after 13.01.2007 is concerned he referred to Rule 2A of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, which states that the provisions of Chapter II shall not apply to package, commodities meant for industrial consumers or institutional consumers. He also referred to the Explanation to rule 2A where institutional consumers have been defined as those consumers who buy packaged commodities directly from manufacturer/pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of the term pre-packed commodity. He submitted that in the light of this Affidavit the petitioner (respondent-assessee) sought to withdraw the Writ Petition. Accordingly, the Hon'ble High Court allowed the petition to be withdrawn leaving all contentions open vide its order dt. 31.03.2011. 10.2 The learned Advocate then submitted that what is to be seen is whether the commodity is pre-packed or not. Once, it is pre-packed, it is covered by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. He submitted that there is no dispute that goods in question are pre-packed and hence the goods have been rightly assessed to duty under section 4A of the Central Excise Act, 1944. In this connection, he relied upon the judgment of hon'ble Bombay High Court in the case of Larsen Toubro vs. Union of India reported in 2012 (275) ELT 153 (Bom) . He particularly referred to para 13, 14 15 of the judgement. He also sought to take support from the judgment of Hon'ble Supreme Court in case of Jayanti Food Processing (P) Ltd. cited (supra). He particularly referred to para 33 34 of the cited judgment. 10.3 Learned Advocate also referred to the Board Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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