TMI Blog2015 (10) TMI 1991X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court). In these circumstances, we hold that appellant has correctly valued their goods sold to the wholesaler in wholesale packages and valued as per section 4 of the Central Excise Act 1944 i.e. transaction value - Decided in favour of assessee. - Appeal Nos. E/1960-1961/2011-EX(DB) - Final Order Nos. A/52747-52748/2015-EX(DB) - Dated:- 5-8-2015 - Ashok Jindal, Member (J) And B Ravichandran, Member (T) For the Appellants : Shri V Lakshmi Kumaran Shri Amit Jain, Advs For the Respondent : Shri Pramod Kumar, DR ORDER Per Ashok Jindal The appellants are a manufacturer of fasteners i.e. nuts, bolts and screws for automobile. Shri Atul Aggarwal is Director of appellant company. 2. The goods manufactured by the appellant are chargeable to Central Excise duty under notification no. 11/2006-CE-NT dated 29.05.2006 as amended. The automobile component and accessories falling under any chapter of Central Excise Tariff are to be charged duty on assessable value determined under section 4(A) of the Central Excise Act 1944. The period of dispute in this case is 01.06.2006 to 31.12.2008 and from 01.01.2009 to 31.09.2010. During the impugned period, the appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that for the period upto 12.01.2007 the demand is also not sustainable as there was no saving clause in the Rules and it is settled law that proceedings cannot be initiated under a rule, after it has ceased to exist. To support his contention he relied on the decision of the Apex Court in the case of Rayala Corporation Pvt. Ltd. vs. Director of Enforcement New Delhi reported in 1969 (2) SCC 412 and Kolhapur Cane Sugar Works Ltd. Vs. UOI 2000 (119) ELT 257 (SC) . 5. On merits, he submits that goods in question cannot be considered as multi piece packages as multi piece packages contemplates individually packed and labeled pieces of same commodity intended for retail sale. In fact, in the present case the nut, bolts, screws are not individually packed or labeled. On the contrary, they are packed in bulk in loose form in a polythene bag inside a carton containing 10 to 200 pieces. Individual pieces are sold to ultimate consumer without any packing. Therefore, the wholesale package cannot be considered to be Multi piece package. He further submits that fasteners packed in loose form in bulk sold to intermediaries / distributors for further distribution in smaller quantitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were seized on 01.12.2008. However, the first show cause notice was issued on 07.05.2010, therefore, the entire amount of duty in the said show cause notice is barred by limitation. He further submits that demand for the period January 2009 to November 2009 is also barred by limitation as show cause notice has been issued on 07.01.2011. In these terms, he prayed that impugned order be set aside and appeals be allowed with consequential relief. 7. On the other hand, Ld. AR supported the impugned order and submits that when the appellants are clearing goods to their spare part division and doing valuation as per section 4(A) of the Act. Therefore, this clearance to dealer / distributors are also liable to be assessed as per the value determined under section 4(A) of the Act. 8. Heard the parties. Considered the submissions. 9. In this case the sole issue before us for determination is that whether the goods supplied to the distributor in wholesale packages are liable to be assessed under section 4(A) of the Central Excise Act 1944 or not? 10. Before deciding the issue we have to see the various provisions of the Standard of Weight and Measures (Packaged Commodities) Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler in bulk, we are of the considered view that the appellant are clearing their goods in wholesale packages, after analyzing the definition of wholesale package as defined under Rule 2(x) of the standard of Weight and Measures (Package Commodities) Rule 1977. We also find that Rule 29 (ibid) specifies that on wholesale packages the declaration to be made by the assessee and as per the said Rule there is no requirement to declare retail sale price. Therefore, we hold that appellant are not required to declare retail sale price on wholesale packages. 14. In these circumstances, we are of the view that on merits, the appellants are having a case that they are clearing their goods as wholesale packages to the distributors / intermediaries to sell the goods in question to the consumer in smaller quantities. 15. With regard to the case laws, we find that the issue on valuation under section 4(A) of the Central Excise Act 1944 was dealt by the Hon'ble Apex Court in the case of Jayanti Food Processing (P) Ltd. Vs. CCE-2007 (215) ELT 327 (SC) wherein the Hon'ble Apex Court has laid down the guidelines for valuation of the goods under section 4 (A) of the Act which are repro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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