TMI Blog2006 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the biscuits cleared by the appellants and packed in tins of 2.5 kg. and above. The appellant paid duty under Section 4A of the Central Excise Act. Revenue contends that Section 4A is not applicable and only Section 4. Consequently, proceedings were initiated against the appellants. The Addl. Commissioner held the following (a) biscuits cleared in excess of 1 kg. should be valued under Section 4, (b) demand of differential duty of Rs. 3,84,777/-, (c) demand of interest under Section 11AB, (d) penalty of Rs. 3,84,777/- under Rule 25 of the Central Excise Rules, 2002. The Commissioner (A) in the impugned order upheld the Order-in-Original. The appellants are highly aggrieved over the impugned order and they have come before this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of Section 4A is erroneous and opposed to the Provisions of Section 4A. (vi) The penalty imposed under Rule 25 equal to the duty demanded is not justified on the facts and circumstances of the case. This is an assessment dispute and the appellant has a bona fide belief that assessment should be under Section 4A. There is no deliberate intention on the part of the appellant to evade any duty and no finding has been given for imposition of penalty. (vii) The impugned order in appeal admitted that no opportunity was extended to the appellant to know the reworking of assessable value, which was done excluding the participation of the appellants in such exercise. Annexure-I to the impugned order of the Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, Sub-Rule 6(1)(F) ibid requires that the retail sale price of such specified goods should also be declared. The implication of this provision is that the commodity should be packed in specific quantities as declared in Schedule-III. Reference to Schedule-III shows that the biscuits to which these provisions apply should be packed in quantities of 25g, 50g, 75g, 100g, 150g, 200g, 250g, 300g and thereafter in multiples of 100g upto 1 kg. It is therefore, evident that any package containing biscuits in excess of 1 kg. is not specified in the said Schedule-III. In such a situation where a person packs biscuits in a package in excess of one kg, there is no requirement of declaration of the retail sale price. Hence, in the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its which are in Sl. No. 3 in Schedule-III can be packed in any quantity beyond the maximum standard quantity. Therefore, the reasoning of the lower authorities is incorrect. The appellants are at liberty to pack the biscuits in quantities of more than 1 kg. for retail sale. 6.2Apart from the above, if the commodity is to be exempted from the above Rules, it should be by way of Rule 34 of the Standards of Weights and Measures (PC) Rules, 1977. Rule 34 deals with exemption in respect of certain packages. For example, if the commodity is packed specially for the exclusive use of any industry as raw material, then there is no need for following the rules like affixing the maximum retail price, etc. In the present case, Revenue has not shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by this provisions should actually be sold in retail. In the above decision, the decision of the Tribunal rendered in the case of Jayanti Food Processing Pvt. Ltd. v. CCE - 2002 (141) E.L.T. 162 (Tri.-Del.) has been followed. 6.4Summing up, in view of the fact that the impugned goods viz., biscuits are notified under Section 4A and are not exempted under Rule 34 of the Packaged Commodity Rules, their valuation would be under Section 4A only. Further, there is no requirement in respect of biscuits that they cannot be packed in packages weighing more than 1 kilogram in view of the second proviso to Rule 5 mentioned above. Thus, we allow the appeal with consequential relief, by setting aside the impugned order. (Pronounced in open ..... X X X X Extracts X X X X X X X X Extracts X X X X
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