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TMI Blog2012 (6) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... of preliminary investigation, the officers found that assessee has categorized its products under four divisions namely:- i) Consumer Products Division; ii) Luxury Products Division; iii) Active Cosmetic Products Division; iv) Professional Products Division. 3.1 The products belonging to all the four divisions are affixed with MRP and are sold to dealers except the products of Professional Product Division. The dealers sell all the products to the retail sale agencies for sale to the ultimate consumer. As per the policy of the respondent assessee, the product of the Professional Product Division are sold by the dealers to the salons and beauty parlours only. The products of Professional Product Division are again sub-divided into two categories namely: i) Technical Products:- Which are sold only to salon for their exclusive internal in-salon use; ii) Retail Products:- which are sold to salons for resale by salons to ultimate consumers. 4. During the course of investigation, the officers also found that the Technical Professional Products and their packing contained a remark " product not to be resold to public/for professional use only ". Further the packages carrying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner has misread the show cause notice and proceeded on the basis that the duty demand relates to both technical products and retail products. In this connection, he referred to para 36 of the impugned order where the Commissioner has framed the issues for decision. 9.1 He then submitted that the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 were amended w.e.f 13.01.2007 and hence both amended and unamended Rules will apply to the goods in question inasmuch as the period of demand covers both pre and post 13.01.2007. 9.2 Shri Mondal then submitted that as per the policy of the respondent assessee, the Technical Professional Products are sold only to salons through its dealers and as per the agreement between the dealers and the respondent-assessee these products are not intended or offered for retail sale. This is quite evident from the label/leaflet/packages of these products on which the words "products not for retail sale and for professional use only" are printed. He also showed us some of the sample packages during the hearing in this regard. He submitted that the use of these products requires professional training an expertise and these products a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry like transportation (including airways, railways) hotel or any other similar service industry. He emphasized that salons are part of service industry. In his submissions, the requirement of direct purchase from the manufacturer is satisfied inasmuch as the technical products are to be sold exclusively to salons by the dealers and distributors as per the agreements. 9.4 Shri K.M.Mondal also sought to take support from the Apex Court judgment in the case of M/s Jayanti Food Processing Pvt. Ltd. reported in 2007 (219) ELT 327 (SC). He particularly referred to para 9 to 18 of the said judgment. 10. Shri V.S.Nankani, learned Advocate for the respondent pointed out at the outset that the Review order dt. 28 th May 2010 based on which the Revenue appeal has been filed goes beyond the scope of the Order-in-Original dt. 5 th March 2010. He submitted that the Deputy Controller of Legal Metrology, Mumbai vide his letter dt. 9.3.2009 clarified that the goods in question were covered by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. This clarification was taken into consideration by the Commissioner while passing of the impugned order. However, subsequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby the Board has advised the field formations that in case of any doubt in respect of any particular commodity as to whether the assessee is exempted in declaring the retail price or not a clarification may be obtained from the concerned department (generally the Metrology Department of the State Government). 10.4 Finally, the learned Advocate submitted that in the event, the Revenue appeal is allowed partly or wholly, the matter should go back to the adjudicating authority for giving a decision on the point of limitation inasmuch as the Commissioner while dropping the show-cause notice in toto, did not give any finding on the limitation. 11. In the rejoinder, Shri K.M.Mondal submitted that the judgment of the Hon'ble Apex Court in Jayanti Food Processing (P) Ltd. relied upon by the learned Advocate helps the Revenue rather than assessee inasmuch as in para 34 of the judgment, the Hon'ble Supreme Court has observed as "we do not accept the argument for the simple reason that there does not appear any factual assertion on the part of the Department that the packages contained a declaration that they were specially packed for a particular industry for servicing the same. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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