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TMI Blog2013 (9) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... 4A of the Central Excise Act, 1944. During the period of dispute, two of their products "44 gms. Cadbury Dairy Milk Gold" and 20 gms. "Cadbury 5 Star" packed in retail packs with MRP printed on them were cleared to their job worker M/s. Dr. Writers Food Products Ltd., Satara in cardboard cartons called "outers", which contained certain number of bars of chocolates. In the premises of job worker, the "5 Star" and "Dairy Milk Gold" were repacked into assortment packs called "Celebrations", which were cleared on payment of duty on the value determined under Section 4A i.e. MRP declared on "Celebrations" pack minus abatement. The dispute in this case is about the duty payable on the clearances of "Dairy Milk Gold" and "5 Star" chocolates in car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters' for the purpose of repacking into assortment packs called "Celebrations", that in respect of clearances to the job workers, the unit of assessment was the cardboard pack, not the individually packed 'Cadbury Gold' and '5 Star' Chocolates, that the cardboard packings were wholesale packings in terms of Rule 2(x) of the Standards of Weights and Measures (Package Commodities) Rules, 1977 [SWM (PC) Rules] framed under Standards of Weights and Measures Act, 1976 [SWM Act], that in respect of such wholesale packages, there is no requirement of printing the MRP in terms of Rule 29 of the SWM (PC) Rules, that in contra distinction to Rule 6(1)(f) of the SWM (PC) Rules, which specifically requires affixation of MRP on a retail package, Rule 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on their package and, in fact, the MRP were affixed on individual pack of "Cadbury Gold" and "Cadbury 5 Star", and the goods cleared have all the trappings of the goods meant for retail sale; (b) there was no marking on the 'Outers' in which the chocolates were cleared indicating that the goods were not for sale; (c) the provisions of Rules 34 and 29 of SWM (PC) Rules are not applicable and, hence, in respect of the goods, in question, there is requirement of printing the MRP on their package and, hence, the provisions of Section 4A are applicable; (d) the judgment of Hon'ble Supreme Court in the case of M/s. Jayanti Food Processing Pvt. Ltd. (supra) is not applicable to the facts of this case; and (e) the goods, in question, are not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid on value determined under Section 4. According to the Department, in respect of the goods in question, it is Section 4A which is applicable and duty was required to be paid on the value determined under Section 4A. 4. Hon'ble Supreme Court in the case of Jayanti Food Processing Pvt. Ltd. & Others v. Commissioner of Central Excise, Rajasthan & Others (supra) after analyzing the provisions of Section 4A has held that for application of Section 4A - (a) the goods must be excisable goods which are sold in packages; (b) there should be requirement in the SWM Act or the SWM (PC) Rules made under SWM Act, or any other law, to declare the price of such goods relating to their retail sale on the package; (c) the Central Government must have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such or whether for convenience of distribution, he sells the retail packs, further packed in wholesale packs and whether such wholesale packs are exempt from the provisions of SWM Act and the Rules made thereunder is of no relevance. Section 4A will be attracted once in respect of the packages meant for retail sale for individual or any other consumer, there is requirement of affixing MRP on the package under SWM Act or the rules made thereunder or under any other law. It is in accordance with this principle that the Tribunal in the case of Central Arecanut & Cocoa Marketing & Processing Co-op. Ltd. (AMPCO) v. CCE, Mangalore reported in 2008 (226) E.L.T. 369 (Tri.-Chennai) held that Eclairs weighing less than 10 gms and, hence, exempt fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked in bigger cardboard packages called "Outers" are wholesale packages in terms of Rule 2(x)(ii) of SWM (PC) Rules. Under Rule 2(x)(ii) of SWM (PC) Rules, a wholesale package means a commodity sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity to the consumer in smaller quantities. This sub-rule covers bulk sale of a commodity to an intermediary who distributes that commodity in smaller quantities. This case of repacking of one type of retail pack into another type of retail pack-assortment pack called "Celebrations" by a job worker cannot be called bulk sale to an intermediary for further sale or distribution in smaller quantities. 6. We, therefore, hold that the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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