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TMI Blog2014 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... hority has confirmed a duty demand of Rs.2,78,22,938/- against the appellant, M/s. H & R Johnson (India) Ltd. in respect of the clearances of tiles made by them to persons other than the dealers, during the period from 17/01/2007 to December, 2011. He has also confirmed interest on the duty demand and imposed equivalent amount of penalty. Aggrieved of the same the appellant is before us. 3. The learned counsel for the appellant submits that the appellant is a manufacturer of ceramic tiles falling under Chapter 69 of the First Schedule of the Central Excise Tariff Act, 1985. These tiles have been notified under Section 4A of the Central Excise Act, 1944 and the appellant is discharging duty on these tiles as per the provisions of Sectin4A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the discharge of excise duty liability on the basis of MRP declared on the packages of tiles is correct 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan 2007 (215) ELT 327 (SC) wherein it was held: "sub-section (1) of Section 4A was link sub-section (1) was linked with the packages of the goods in respect of which the retail sale price was required to be printed under SWM Act and the Rules made thereunder or any other law. Sub-section (2) then provides that such specified goods where they are excisable goods would be valued not on any other basis but on the basis of the retail sale price declared on such packages. The Section also provides that the assessee would be entitled to the deduction from such valuation the amount of abatement provided by the Central Government by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 dismissed as reported in 2011 (271) ELT A16 (SC). Reliance is also placed on the decision of the Tribunal in the case of Mexim Adhesive tapes Pvt. Ltd. vs. Commissioner of Central Excise, Daman 2013 (291) ELT 195 wherein also a similar question arose and it was held that, as a general rule, all packaged commod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumers should be made under Section 4 of the Act and not under Section 4A. It is accordingly, contended that the duty demand is sustainable in law and the impugned order merits to be upheld. 5. We have carefully considered the submissions made by both the sides. We have also perused the sample purchase orders placed by some of the institutional buyers. From these documents, it is seen that the goods are required to be supplied in standard packages consisting fixed number of specified tiles. These packages are the same in respect of retail sale also and on these packages the appellant 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 buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely clear that the supplies made by the appellant to the various institutional buyers are not excluded from the declaration of MRP under the Packaged Commodity Rules. We cannot disregard these clarifications given by the competent authorities in the matter. 5.1 We further observe that the hon'ble apex Court in the case of Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan (supra), had clearly held that to come under the purview of Section 4A, the following conditions should be satisified: (i) The goods should be excisable goods; (ii) They should be such as are sold in the package; (iii) There should be req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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