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2016 (2) TMI 533 - CESTAT MUMBAI

2016 (2) TMI 533 - CESTAT MUMBAI - TMI - Valuation - various cosmetic products - Transaction Value u/s 4 or MRP based value u/s 4A - technical professional products meant for professional use in salons - these products used by the professional in the hair style business - Held that:- it is clear from the records that the products professional technical products are sold by the appellant through the dealers and wholesalers to the salons and beauty parlors for their consumption, the fact which is .....

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For the Petitioner : Shri Hitesh Shah, Commissioner (AR) For the Respondent : Shri V.S. Nankani, Sr. Advocate with Shri C. Nand Gopal & Prithviraj Chaudhari, Advocate ORDER PER: M.V. RAVINDRAN This appeal is filed by the Revenue against Order-in-Original No. 05/CEX/2010 dated 5.3.2010 passed by the Commissioner of Central Excise), Pune-I. 2. The relevant facts that arise for consideration, after filtering out the unnecessary details, based upon information, officers of Directorate General o .....

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on 4 of the Central Excise Act and assessing the same under the provisions of Section 4A of the Central Excise Act, 1944. On completion of the investigation, a show-cause notice dated 19.6.2009 was issued to the respondent directing them to show cause as to why differential Central Excise duty aggregating to ₹ 21,26,07,051/- as per the Annexure to the show-cause notice should not be demanded and recovered for the products cleared during June, 2004 to 30th April, 2009 and why the amount sho .....

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eal before the Tribunal. The Tribunal by an order dated 21.5.2012 set aside the impugned order and remanded the matter back to the adjudicating authority. 2.3 Aggrieved by the said order, the respondent assessee filed a Writ Petition before the Hon'ble Bombay High Court, which was disposed of by their Lordships vide an order dated 21.8.2012 by setting aside the order of the Tribunal dated 21.4.2012, with a direction to decide the appeal only with reference to valuation of technical products .....

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al products only, which are only meant for professional use in salons and the technical products are not offered/intended for retail sale, as per policy of the respondent. It is also his submission that the technical products are meant for use in the salons, were kept outside the provisions of Section 4A of the Central Excise Act, Commissioner ignored the distinction between technical professional products meant for consumption in salons (service industry) and retail professional products meant .....

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provisions of Chapter II would not apply. That does not mean that where institutional or industrial customer buy packaged product from dealers, there is requirement to declare MRP on the package. (iii) It is his submission that the issue involved in this case is for two periods, one prior to 15.1.2007 and subsequent to 15.1.2007, as the provisions of Rule 34 were deleted by an amendment dated 17.7.2006 in the said Rules, he would then take us through the definition of words Dealers, pre-packed c .....

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anywhere else, except the salons, which is confirmed by the packages on which there is mention for use of professionals in salon. It is his submission that the adjudicating authority has erred in coming to the conclusion that the provision of rule is irrelevant as to who consumed the goods. It is his submission that Standards of Weight and Measures (Package Commodity) Act, 1976 (hereinafter referred to as said Act) clearly states that the provisions are made with respect to the packaged commodit .....

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he supply of technical professional products ultimately used in the salons for service to the customers would be meant for servicing the salon industry and the provisions of Rule 34 of the Rules before 14.1.2007 will apply and the respondent should not have declared any MRP on the said products. (vi) The adjudicating authority has erred in not appreciating the fact that the case of the department is that the packages containing the product are not offered or intended for retail sale in terms of .....

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s and these products are not sold together. He would then refer to the 8th Edition of Black s Law Dictionary for the meaning of the consumer, which according to him, means a person who buys goods or services for personal, family or household usage, with no intention of resale and as a natural person who uses product for personal rather than business purposes. It is his submission that in the instant case the salons are using and consuming the technical products to provide various services to the .....

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trology is also not correct as the said opinion was taken without informing the facts of the case to Legal Metrology Department. It is his submission that the products sold by salons are treated as retails product and thus they are to be exclusively used by salon would be technical products not intended for sale and would be covered by the provisions of Section 4 of the Central Excise Act and not Section 4A as being followed by the respondent assessee. It is his submission that the Legal Metrolo .....

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ch in this case indicates the technical product are not intended for retail sale. It is his submission that for this proposition, he relies upon the judgment in the case of Swan Sweets Pvt. Ltd. - 006 (198) ELT 565 (Tri-Mum), Makson Confectionery Pvt. Ltd. - 2010 (259) ELT 5 (SC), and Central Arecanut & Cocoa marketing and Processing Co-op. Ltd. - 2008 (216) ELT 369 (Tri-Chenn). (x) It is also his further submission that when there is no need to mention retail sale price (RSP) on the package .....

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Mum), India Cine Agencies - 2007 (220) ELT 815 (Tri-Chenn), Controls & Switchgears Contractors Ltd. - 2005 (183) ELT 95 (Tri-Del), Nestle India Ltd. - 2009 (248) ELT 737 (Tri-Bang). He also relies upon the judgement of Hon'ble Bombay High Court in the case of G.S. Poddar Vs. Commissioner of Wealth Tax - 1965 (57) ITR 207 (Bom) for the proposition that the enactment is to be interpreted by looking whether a product was capable of being intended for personal or household use. 4. Learned Sr .....

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specific dealers and the company representatives certify and scrutinize such sale transaction. It is his submission that the entire activity was known to the department when they cleared the goods to the dealers, who in turn sold to the salons and that there is no dispute as the respondent had affixed the MRP/RSP on such goods. 4.1 After taking us through the order of the Commissioner, he would submit that (i) Company has not wrongly assessed the technical product under provisions of Section 4A .....

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use these goods for benefit of the customers and hence sale to such individual customers are retail sale. He would place reliance on the meaning of the word consumer, which means a person who buys the goods and uses it and person who use the original products and submit that it can be inferred that the consumer was a person and such a sale was retail sale. (ii) It is his submission that where any definition is provided for ascertaining the correct meaning, the same should be construed as in com .....

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rt while interpreting the term consumer for commercial purpose held that a person who buys the goods and use them himself exclusively for the purpose of earning his livelihood, by means of self-employment, is consumer. Salon falling in this category and would get this covered to the word consumer. It is his submission that this view has been expressed by the Apex Court is binding judgement. (iii) It is his further submission that in the context of the word consumer , Hon'ble High Court of .....

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ommodity) Act and the rules made thereunder. It is his submission that learned AR has relied upon this judgment to press on a point that the sales to consumers of products are not covered under the retail sale is wrong proposition of the judgement. It is his submission that the same judgement in another issue observed that when 12 mineral water bottles of 200 ml capacity packed in a single package and sold to Jet Airways under a contract for consumption of passengers, who are flying and the bott .....

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ment has taken a similar view in respect of the goods which is purchased by the company for supply to their subsidiary while providing taxable services, upheld the contention that affixing of MRP on the goods and valuation in terms of Section 4A of the Central Excise Act is correct. (vi) It is submitted that the provisions of rules relating to exemption from declaration of retail sale price were not applicable to the technical products prior to 14.1.2007 as sale to salons were retail sale as it .....

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claration on the package merely restricted the class of retail buyers and should not be considered that the technical products were not indeed meant for retail sale, mixing the class of retail buyers. The declaration is made merely to identify who can use the technical products under the provisions of Rules. It is his submission that once conditions were satisfied i.e. the goods required to be affixed with MRP under the provisions of Rules as has been notified by the Central Government by notifi .....

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t there was no independent role of the dispatcher and therefore, the purchase of technical products by salon should be treated as a product purchased from the manufacturer was an incorrect allegation. (vii) Conclusion based on opinion received from the Legal Metrology Department on 9.3.2009 clearly states that the said products are covered under the Standards of Weight and Measures Act and Rule made thereunder. It is his further submission that CBE&C vide Circular No. 625/16/2002-CX dated 28 .....

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may serve letter dated 9.3.2009 vide which the Legal Metrology Department had opined that the technical professional products are covered under rule but was later withdrawn on 23.5.2010 only on the insistence of the Department especially the DRI. It is his submission that it is left to imagination as how the Legal Metrology Departments letter dated 9.3.2009 stands to be withdrawn under pressure of DGCEI. (ix) He would submit that the extended period cannot be invoked in this case as during the .....

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ondent could have had a bona fide belief, supported by various judgments and clarifications. (x) It is his further submission that the show-cause notice has not stated any reason as to why the authorities believed that the respondent had willfully contravened the provisions of Central Excise Act or rules made thereunder. It is his submission that if no tax is payable, interest and penalty is also not payable and further that no penalty is payable for the non-payment of tax, which was due to bona .....

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g Pvt. Ltd. 2007 (215) ELT 327 (SC) (xii) He would also submit that the clarification issued by Dy. Controller of Metrology is binding on the Revenue in view of the case of- (a) Alpa Resins & Paints Ltd.- 2006 (196) ELT 91 (Tri-Mum) (b) Castrol India Ltd. - 2008 (223) ELT 638 (Tri- Ahmd) (xiii) He would submit that the impugned order be upheld as correct and legal. 5. In rejoinder, learned AR would submit that as regards the limitation aspect, the respondent never indicated in their document .....

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ved in this case is whether the action of the respondent in selling the technical professional products to salon are to be assessed under the provisions of Section 4A of the Central Excise Act (as done by the respondent) or under Section 4 of the Central Excise Act as sought by the Revenue. 6.2 Undisputed facts are that the respondents are manufacturer of various cosmetic products and one of the products is professional products, which is categorized into two streams technical products and retai .....

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s of Section 4A of the Central Excise Act under a belief that the products manufactured by the respondent and cleared to salon are covered under the MRP/RSP regime. It is also undisputed that the professional technical products, as a matter of policy, are only sold to salons and beauty parlors and are not allowed to be sold to retailers for direct sale to consumers. The products are purchased by the salon and beauty parlors through the dealers of the respondent. 6.3On ground of such factual matr .....

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d for sale through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals; (q) "retail sale" in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or group of individuals or any other consumer; (a) Institutional Consumer means those consumers who buy packaged commodities directly from the manufacturers/packers fo .....

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ix RSP/MRP. Thus, consumers are either categorized as institutional consumers or industrial consumers. 6.4 We find that the adjudicating authority has correctly recorded that it is not specified as to ascertain who consumes the products ultimately and it is also very important to find out as to how the products are sourced, whether from manufacturer or from the dealers. After recording the above findings, the adjudicating authority considered the applicability of the said Rules as to the case .....

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urced directly by the industry or institutions from the manufacturers of the goods. If the same institutions or industry procure them from dealers, the products would still be subject to the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the Maximum Retail Price (MRP) would still have to be printed on these goods, whether they are consumed by the industry, service sector or otherwise. This interpretation is not only applicable with the introduction of Rule 2A with effec .....

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l contractors only were meant for retail sale and whether the switch gear products were governed by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 or whether they were assessable under Section 4. These products also bore the declaration as "specifically packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry and not intended for retail sale." The period involved was both prior to 14.01.2007 an .....

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oners it was submitted is of the 3rd type and the Supreme Court has held in such a case that the assessing officer cannot question the basis of the said declaration. This argument could have been considered if rule 34(a) was in force in the matter of declaration but the same has been omitted w.e.f. 13/1/2007. Apart from that what the rule will mean is that the package as a pre-packed package is meant for use by industrial consumer as explained in Rule 2A explanation or for purpose of servicing a .....

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the industrial or service consumer would result in the presumption that it was meant for such consumer. That would be the scope of the declaration. What runs through all these definitions is the ultimate consumer. Proviso to Rule2(p) excludes only industrial or institutional consumers. Industrial or institutional consumer is not defined but explained only in Rule 2A. Rule 2A excludes packages of commodities containing quantity of more than 25Kg. or 25 litre excluding cement and fertilizer sold .....

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apply. Such a construction would defeat Rule 2A(b). The explanation only excludes a class of consumers who in the absence of the explanation or Rule 2A would be consumers. The industrial or institutional consumers for the purpose of Rule 2(p), As an illustration. If the packaged c6mmodity purchased cannot be directly installed by the Co-operative Housing S9ciety on the ground that such user is prohibited by the Electricity Rules, that\however, would only mean that a person qualified under the r .....

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chase and use also make such purchaser the ultimate consumer. Yet another person may purchase the retail package and use it in combination with other goods, as an illustration to make a switch board. Such a consumer cannot be said not to be the ultimate consumer. Such a consumer also consumes the commodity. Such consumer may market or sell it as another commodity thereby loosing its original distinct character. All such consumers whether they be institutional or industrial will also be covered b .....

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al or industrial consumer would be the same. It can be seen that the adjudicating authority has correctly applied the said law. The facts in case in hand is that the respondent herein, as a policy, does not sell professional technical products to any other persons, other than the salons and beauty parlors and it is undisputed that the respondent has strict control over the dealers and distributors for this by way of an agreement with them. 6.5We also find that it is correctly recorded by the adj .....

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ng authority in paragraph 42 has referred to the clarification given by the Dy. Controller of Legal Metrology as to whether the products in question i.e. professional technical products were required to be affixed by any MRP/RSP. The said clarification received by Department clearly states that that the Standards of Weight & Measures Act, 1976 as well as the rules do not recognize professional products separately and since the commodities are sold through the dealers, the provisions are appl .....

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pute that may arise whether the product is covered under the provisions of RSP/MRP or otherwise. In paragraph 7 of the said Circular, CBE&C has clarified as under: - 7. The Standards of Weights & Measures Act, 1976, and the rules made there under, are administered by the State Governments. Instances of dispute could arise between the deptt. and the assessee as to whether, in respect of a particular commodity/transaction, the assessee is exempted from declaring the retail price or not. In .....

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n issued by the Dy. Controller, Legal Metrology was withdrawn on 9.3.2010 while the adjudicating authority has passed the order on 5.3.2010. We are unable to understand the logic of the Revenue as to how the withdrawal of the clarification subsequent to adjudication of the case needs to be considered for setting aside the impugned order. 6.7 The reliance placed by the learned AR as well as the grounds of appeal by the Revenue on the ratio of the Apex Court by the judgment in the case of Jayanti .....

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e issue on ice-creams package of 4 kgs pack, which are not considered to the retail package and held that the same cannot be considered as sale to an individual or group of individuals. The Apex Court arrived at a conclusion that ice-cream package of 4 Kg pack was a wholesale package and provisions of Rule 34 were attracted. In the case in hand, the learned adjudicating authority has correctly addressed the issue in hand and applicability of the judgment of the Apex Court as has been demonstrate .....

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fact, some of the products are authorized be sold by the salons to their customers. Therefore, there can-be no doubt in the case of these products that there is a retail sale. Merely because the products are sold with a qualification does not mean that there is no retail sale. Thus, the allegations in the show-cause notice in respect of the retail products sold by the salon to their clients clearly fail. There is a retail sale and the provisions of Section 4A are squarely applicable to these, pr .....

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view the above said findings are correct from the facts of the case and the judgment of apex Court in the case of Jayanti Foods Processing (supra) squarely applies. 6.8 We also find that the issue as to whether the consumption of product by the salons would amount to consumption by consumer has been answered by the Hon'ble Supreme Court in the case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute (supra), wherein their Lordships were considering the definition of word consumer as .....

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excludes from Its purview "a person who obtains goods for resale or for any commercial purpose". However, in the Act, "consumer" is defined as any person who, - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes and user of such goods other than the person who buys such goods for consideration paid or promised to partly paid or partly promised, or under any system of .....

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ively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression 'consumer'. Thus, all consumption of professional products by salons run by individuals for the purpose of earning his/her livelihood would continue to be consumers. There cannot be any second view when show-cause notice relied on definition of consumer in Consumer Protection Act, and findings of adjudicating authority on the judgement of apex Court is apt and contextua .....

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ich are consumed by the industrial and institutional consumers. Thus all the products which do not fall within the purview of Rule 2A of The Standards of Weights and Measures (Packaged Commodities) Rules, 1977 would automatically fall in the category of retail products to which Section 4A applies. It is irrelevant as to who consumes them. Thus the attempt to identify whether the consumer is a service industry or, an ultimate consumer does not help the case of the department. As is already stated .....

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h the dealers and wholesalers to the salons and beauty parlors for their consumption, the fact which is not disputed in the appeal. If that be so, we find that the learned adjudicating authority was correct in holding that the respondent was not in error in discharging the duty liability on the clearance made by them of these products to salons and beauty parlors under the provisions of Section 4A of the Central Excise Act, 1944. 6.11 In a similar set of facts in respect of sale of shoes to inst .....

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essee. Respectfully, we reproduce the entire judgment and order: - The respondent herein is engaged in the manufacture of footwear under the brand name of 'Liberty' falling under Chapter 64 of the First Schedule to the Central Excise Tariff Act, 1985. They are selling their final product, i.e., footwear to various buyers in retail as well as to various institutional buyers in bulk on contractual price, but are paying Central Excise duty on the basis of MRP after availing abatement of 40 .....

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ection 4A unambiguously state that MRP is the basis of valuation under Section 4A whereas, in the case of sale of goods, on the basis of contract price, Section 4A will not apply. In case of sale of goods by manufacturer at the contract price, affixation of MRP has no legal significance so far as valuation of goods is concerned. The valuation of goods for levy of excise duty, in a case where goods are sold to an institutional buyer under a contracted price, shall be governed by Section 4 of the .....

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not intended for sale directly to the consumers. The provisions of Section 4A, therefore, are not attracted as there is no requirement under the Rules to declare retail sale price on the packages meant for such sale. Thus, mere affixing MRP on packages supplied to institutional buyers does not constitute retail sale as MRP is required to be affixed only in the case of retail sale and not in the case of wholesale sale or bulk sale to the institutional buyers. 4. The Revenue also relied upon the .....

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packages of the goods under the provisions of the Standards of Weights and Measures Act, 1976 or the Rules made thereunder or any other law for the time being in force. 6. In view of the above, the respondent herein was served with three show cause notices. 7. The Adjudicating Authority, vide its first Order-in-Original dated 30-12-2005, confirmed the duty of ₹ 22,97,300/- and ₹ 4,71,349/- demanded under two show cause notices and vide second Order-in-Original dated 30-3-2006 confirm .....

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roposed by the Adjudicating Authority. 9. Aggrieved, the Revenue filed an appeal before Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT'), which vide its judgment and final order dated 20-6-2007 [2007 (216) E.L.T. 692 (Tri.-Del.)] dismissed the appeal and held that the order of the Commissioner (Appeals) is in conformity with the provisions of Section 4A of the Act. 10. A perusal of the order of the CESTAT shows that the Commissioner (Appeals), whil .....

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a matter of record that footwear is an item which is specified under Section 4A of the Act. 12. Once we find that the footwear is an item which is specified under Section 4A, which is covered by Weights and Measures Act and Rules, and MRP was affixed on the products supplied, which were not exempted under Rule 34of the Rules, the provision of Section 4A of the Act shall stand attracted. 13. The issue is no more res integra and has been elaborately dealt with by this Court in 'Jayanti Food Pr .....

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d accordingly. It is, therefore, clear that the "package" which was sold by the assessee could not be termed as "retail package" nor the sale thereof be termed as a "retail sale" and as such there was no requirement of mentioning the "retail sale price" on that package. All this has been completely missed in the order of the Tribunal. 33. On the other hand the package in question would certainly come within the definition of "wholesale package" a .....

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e 2(q) (sic 29). The Tribunal does not refer to these vital Rules. 34. There is one more substantial reason supporting the appellant. Shri Ravinder Narain invited our attention to Rule 34 in Chapter V of the SWM (PC) Rules which provides for exemptions. We have quoted Rule 34 earlier. The Rule has now been amended. However, under the unamended Rule there is a specific declaration that the SWM (PC) Rules shall not apply to any "package" containing a commodity if the marking on the packa .....

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dustry" as the case may be. Learned counsel is undoubtedly right when he seeks to rely on Rule 34 which provides for exemption of the "packages" which are specially packed for the exclusive use of any industry for the purposes of "servicing that industry". Shri Subba Rao supported the view expressed by the Tribunal that the words "servicing any industry" could not cover the present case and he further suggested that ice cream cannot be a "raw material" .....

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