TMI Blog2006 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... adras in the case of Varnica Herbs v. C.B.E. C., New Delhi - 2004 (163) E.L.T. 160 (Mad.). We have heard both sides at length. 2. The dispute relates to method of valuation applicable to the impugned goods, namely 'Godrej' brand hair dye in pack of 3 sachets of 3 Gms each. It is the contention of Revenue that such packs are required to be valued on the basis of maximum retail price (MRP) under Section 4A of the Central Excise Act, 1944 (CEA) whereas respondents argue that they have correctly valued the goods under Section 4 of CEA as Section 4A does not apply to such goods. 3. Section 4A of CEA reads as under: "SECTION 4A. Valuation of excisable goods with reference to retail sale price. - (1) The Central Government may, by notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section." 4. It is clear from the above that for Section 4A to apply:- (i) The goods must be specified hi a notification, and (ii) In relation to such goods there must be a legal requirement to declare the retail sale price on the package under the provisions of the Standards of Weights and Measures Act, 1976 (SWMA) or rules made there under or under any other law. 5. It is not in dispute that the impugned goods have been specified under a notification. The dispute relates to whether there is a legal requirement to declare the retail sale price on the package of the impugned goods. The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that the goods such as the impugned goods are "not in tended to be sold either by weight or by measure" is merely a casual remark and not a decision on an issue raised before the Hon'ble High Court. We find it difficult to accept this contention of the respondents as we note that not only the competency of CBE C was an issue in Varnica (supra) but also the question of exemption under Rule 34 of SWMR as is clear from paragraph 13 of Varnica (supra). 8. It has also been argued on behalf of the respondents that the impugned goods in Varnica (supra) in any case were not eligible for exemption under Rule 34 of SWMR as the total weight in that case was 6 x 8 gms 48 gms for every multi-pack. Hence, it is contended that the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not spell out the reason as to why the article is not intended to be sold by weight except saying that it is evident. 11. The respondents have stated before us that the impugned goods, namely hair dyes are cosmetics, in the form of powders. It is their case that the commodity in question is the 'hair dye' and not the 'sachets' which are mere packages. Section 2(b) of SWMA refers to the commodity which is packaged. Section 6 of SWMA defines base unit of mass as the kilogram. Section 39 of SWMA requires quantities and origin of commodities in packaged form to be declared. Definitions of 'multi-piece package', 'pre-packed commodity' 'pre-packed commodity', 'quantity', 'retail package' etc, under SWMR refer to the commodity contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great respect, we have considered the contrary reservation of the Hon'ble Madras High Court in Varnica (supra) to the effect that hair dyes are not intended to be sold either by weight or by measure and we find that the said observation has been made unsupported by any reasoning and without noting the specific provisions of SWMA, SWMR and particularly the aforecited Fifth Schedule to SWMR which specifically requires cosmetics such as hair dyes to be sold by weight or volume. We find merit in the submissions made by the learned advocate Shri Ravindran on behalf of the respondents that such a decision, which has been rendered per incuriam, without noticing the specific legal requirement to sell cosmetics by weight or volume, can not be follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was ad dressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter, Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words [emphasis supplied]. "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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