TMI Blog2008 (11) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... of 33/35 pouches. 30 pouches of 2.5 gms. are further packed into poly pack and is cleared to various dealers. The appellants are paying central excise duty in respect of these pouches based on transaction value under Section 4 of Central Excise Act. Show cause notices were issued to the appellants on the ground that pouches manufactured and cleared by the appellants are assessable under Section 4A of the Central Excise Act and not under Section 4 as poly pack containing small pouches was to be assessed as multi-pieces package. The adjudicating authority confirmed the demand after assessing the goods in question under Section 4A of Central Excise Act and imposed the penalties. 3. The contention of the appellants is that commodity, in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oly packs are containing small packages were sold to various retailers and at the end of retailer the sale to ultimate consumer is in respect of small pouches. 4. Revenue relied upon the decision of the Hon'ble Madras High Court in the case of Varnica Herbs vs. C.B.E. and C, reported in 2004 (163) ELT 160 (Mad.) to submit that in similar situation the Hon'ble High Court held that goods in question are assessable under Section 4A of the Central Excise Act. 5. We find that in the impugned order the adjudicating authority relied upon the decision of the Madras High Court in the case of Varnica Herbs (supra). The Larger Bench of the Tribunal in the case of CCE vs. Urison Cosmetics Ltd. [reported in 2006 (75) RLT 105 (CESTAT-LB)] h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d net weight shall be taken into consideration for the purposes mentioned therein. After combined weight is taken into consideration for the purpose of applicability of the Rules, there is no reason as to why the said purpose shall not be considered to be a relevant factor for applying the exemption provision. Assuming Rule 2(j) was otherwise vague or unambiguous, illustration appended thereto brings out the true meaning and purport thereof. The reasoning adopted by the Madras High Court in Varnica Herbs (supra) does not appeal to us. 24. It was rendered per incuriam. It was held to be so in Urison Cosmetics Ltd. (supra) by a Larger Bench of the Customs Excise and Service Tax Appellate Tribunal. We agree with the said opinion of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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