TMI Blog2016 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the nature of the sale i.e. 50 Ltrs package is made to the ultimate customers, MRP is statutorily required to be affixed and the goods will be valued in terms of Section 4A. Goods i.e. Lubricating oil 50 Ltrs package should be valued in terms of Section 4A and not under Section 4 of the Central Excise Act, 1944. Therefore demands of differential duty confirmed by the lower authorities are upheld. As regards the penalty, we find that all the show cause notices were issued within the normal period of one year, no suppression of mis-statement exists in the present case. Moreover, issue involved in the present case is purely of interpretation of valuation provisions. In view of this undisputed fact we are of the view that penalty of equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 and the goods packed in packaging size of 50 Ltrs, 210 Ltrs and bulk in tankers are being cleared on payment of Central Excise duty on assessable value based on cost construction basis under Central Excise valuation Rules, 2000. However, prior to 1/7/2001 the assessee were clearing the goods packed in 50 Ltrs containers on payment of Central Excise duty on assessable value based on MRP under Section 4A of the Central Excise Act, 1944 and with effect from 1/7/2001 they have started paying duty on assessable value based on cost construction under Central Excise Valuation Rules, 2000. After 1/8/2002 i.e. after taking over the business of M/s. Esso Petroleum India Pvt Ltd by M/s Exxon Mobil Lubricants India Pvt. Ltd. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods will not be covered under Section 4A in terms of provisions of Standards of Weights and Measures Act. He further submits that even MRP is affixed though it is not required as per the provisions of relevant Act the duty cannot be charged on the value as per Section 4A in terms of CBEC Circular No. 411/44/98-CX dated 7/1/1998. He also relied upon the CBEC Circular No. 625/16/202 dated 28/2/2002 wherein it was clarified that in respect of goods which are not statutorily required to print/declare retail sale price on the packages under the provisions of the Standards of Weights and Measures Act, 1976, valuation will be done under Section 4 of Central Excise Act,1944. He placed reliance on the following judgments: (a) CCE vs. Shingar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alent to the duty. He further submits that Ld. Commissioner has wrongly held that once the order was passed on the party's appeal which includes penalty, order of the penalty was merged in the order-in-appeal and applying the doctrine of merger, the appeal of Revenue is not maintainable, accordingly dismissed the appeal of the Revenue which sought the enhancement of the penalty. He submits that in the OIA No. AT/411/Bel/2006 dated 30/6/2006 has no bearing in this case Ld. Commissioner has erred in holding that the penalty order also merged in the order in appeal dated 30/6/2006. In his support he placed reliance on following judgments: (a) Commissioner of C. Ex, Bhavnagar vs Nav Bharat Steels Re-Rolling [2012(285) ELT 529 (Tr. Ahmd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial used in any workshop, service station or any other place where servicing or repairing or any bicycle, tricycle or motor vehicle within the meaning of Motor Vehicle Act, 1939 (4 of 1939), is undertaken; (iii) any package containing a commodity of net content of 5 kilogram or 5 Litre or less and displayed for sale of the retail outlet. (iv) Any package containing a commodity to be sold any number or length and displayed for sale at the retail outlet] (b) The net weight or measure of the commodity is ten gram or tem milliliter or less, if sold by weight or measure.] (c) ------- (d) ------- (e) ------- (f) ------- From the above Rule, it is clear that if the goods are used as raw material by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pack, therefore the fact of said judgment is entirely different from the facts of the present case rather payment of duty on the 50 Ltrs pack by Cstrol India goes against present assessee. 6.3 As regards Dy. Controller of Legal Metrology's letter dated 9/5/2000, firstly the letter is addressed to the different company and facts of that particular case are not on record. Secondly, letter cannot be accepted in isolation particularly when Rule 34 does not provide any exemption from affixing the MRP on the product in question. 6.4 In view of the above discussion, we of the considered view that goods i.e. Lubricating oil 50 Ltrs package should be valued in terms of Section 4A and not under Section 4 of the Central Excise Act, 1944. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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