TMI Blog2014 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 the Dy. Controller of Legal Metrology, Maharashtra has clarified that according to Rule 3 Packaged Commodity Rules, 2011 the provision regarding mandatory declaration on retail packages are not applicable to the packages meant and marked as industrial/institutional consumers - discharge of duty liability tiles supplied in retail packages to real estate developers / developers, etc. has to be made under Section 4A of the Central Excise Act, 1944. Therefore the impugned demands are not sustainable in law - Following decision of ITEL Industries Pvt. Ltd. vs. Commissioner of Central Excise [2003 (10) TMI 140 - CESTAT, BANGALORE] - Decided in favour of assessee. - Appeal Nos: E/1815/2012 & E/85569 & 85570/2013 - Final Order Nos. A/330-332/2014-WZB/C-II(EB) - Dated:- 2-5-2014 - P R Chandrasekharan and Anil Choudhary, JJ. For the Appellant : Shri Gajendra Jain, Adv For the Respondent : Shri Ahibaran, Additional Commissioner (AR) JUDGEMENT Per: P R Chandrasekharan: The appeals are directed against Order-in-Original No: 06-08/AT(06-08)COMMR/RGD/12-13 dated 29/08/2012 passed by the Commissioner of Central Excise, Raigad Commissionerate. 2. Vide the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in law. 3.1 The appellant submits that they had also referred the matter to the Legal Metrology authorities in Maharashtra, Karnataka and Gujarat and they had obtained clarifications that the provisions of Legal metrology (Packaged Commodities) Rules, 2011 regarding mandatory declarations on retail packages are not applicable to the packages meant and marked as industrial/institutional consumers and if the packages are not marked as such, they will be treated as packages for retain sale. It has been further clarified that by the said authorities that if exemption from declaration of MRP is sought, the packages should be further marked as not meant for retail sale . In the packages in which the tiles have been supplied, the appellant has not made any declaration that the packages are not meant for retail sale'. Therefore, in terms of the clarification given by the Legal Metrology department, which is the competent department to enforce the provisions of Legal Metrology (Packaged Commodities) Rules, 2011, the appellants are required to declare the MRP on the packages supplied to builders/real estate developers and, therefore, the discharge of excise duty liability under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such package. In view of the decision of the hon'ble apex Court, the question of assessment of the goods under Section 4 of the Act would not arise at all. 3.5 Reliance is also placed Daenyx International Pvt. Ltd. vs. Commissioner of Central Excise, Noida 2008 (229) ELT 682 wherein colour televisions for use in hotels were cleared. While the department contended that the duty liability should be discharged in terms of Section 4, this Tribunal held that, since the goods are sold in packages bearing MRP, duty liability has to be discharged under section 4A and not under Section 4. In another case relating to Commissioner of Central Excise, Hyderabad- III vs. Sagar Cements 2010 (256) ELT 616, the question for consideration was whether cement sold to Andhra Pradesh State Housing Corporation Ltd., which was in retail packages on which MRP was declared, should be assessed to duty under Section 4A or under Section 4. The Tribunal held that, since the goods are in retails packages on which MRP has been declared, the assessement should be under Section 4A of the Central Excise Act. The said decision was challenged by the Revenue before the hon'ble Apex Court which was dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has declared the MRP. In other words, there is no difference in respect of packages of tiles sold to retail consumers or to the so called institutional buyers and all of them are in standard packages, having MRP declared on them. It is also not in dispute that, on the packages, the appellant has not made any declaration that the packages are not meant for retail sale or the packages are meant for use by any specified industry . In the absence of such markings on the packages, it cannot be said that the goods supplied were not in retail packages. In their letter dated 23/02/2012 the Dy. Controller of Legal Metrology, Maharashtra has clarified that according to Rule 3 Packaged Commodity Rules, 2011 the provision regarding mandatory declaration on retail packages are not applicable to the packages meant and marked as industrial/institutional consumers. Similarly, the Assistant Controller of Legal Metrology, Government of Karnataka, vide letter dated 24/02/2012 has clarified that institutional /industrial package does not bear the MRP marking but will have marking as meant for industrial/institutional consumer' and not meant for retail sale. Similarly, controller of Legal Met ..... X X X X Extracts X X X X X X X X Extracts X X X X
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