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TMI Blog2016 (3) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... of chewing tobacco manufactured and cleared by the respondent/ assessee. Appeal No. E/59089/2013 deals with consequential refund allowed by the learned Commissioner (Appeals) in view of earlier order in favour of assessee to value the chewing tobacco in terms of Section 4 and not in terms of Section 4 A. 2. The brief facts of the case are that the appellants are engaged in the manufacture of chewing tobacco in pouches of 6 gms. and 7 gms. under their brand name. These are then packed in multiples of 52/42/40/32 pouches in a plastic bag and are cleared on sale. It is the case of the Revenue that since the small pouches containing 6 gms. and 7 gms. are together put in a bigger pouches, the entire product should be considered as multi-piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed on to their buyers. On examination of the documents submitted by the respondent, he recorded that the respondents have satisfied both the requirements and, hence, he allowed their appeal with consequential benefits. Aggrieved by this order, the Revenue filed appeal before us. 4. In the grounds of appeal in respect of both the appeals the Revenue mainly contended (a) chewing tobacco manufactured and cleared by the respondent are correctly assessable in terms of Section 4A of the Central Excise Act with reference to the retail sale price. The exemption contained in Rule 34 of SWM Rules not applicable to the impugned goods as they are neither sold by weight nor by measure. They are sold in numbers. (b) Reliance was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g net weight and MRP on the packages. This is clear from the provisions of Rule 34 (b) of SWM Rules; (c) The allegation of Revenue that many small pouches are put together to form a multi piece package intended for retail sale is not factually correct. Apart from not producing any evidence to support the allegation, the Department has not considered the clarifications given by various State Legal Metrology Departments who are the administrators of SWM Act under the Rules. The CBEC vide Circular dated 28/2/2002 has specifically laid down that in case of doubt the clarification from the said Department should be obtained. While the Revenue did not obtain any such clarification, the All India Tobacco Manufacturers Association, Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are wholesale packages. He examined the question on both the ground that (a) whether the small pouches are retail packages, (b) when more than 10 retail packages are in a larger pouch are they wholesale packages. Relying on the interpretation and clarification given by the Metrology Authorities of the State Government he held that the impugned goods cleared by the respondent cannot be considered to be in multi piece package. On the question of the type of sale transaction either by weight or by numbers, the learned Commissioner (Appeals) found that chewing tobacco is sold by weight by the respondent and hence assessment of small pouches of 6 gms. and 7 gms. cannot be done under Section 4A. On careful examination of the grounds of appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t governed the RSP based assessment. The stipulation of multi piece package will not apply in such situation. We find that the CBEC vide their Circular dated 28/2/2002 (para 7) clarified that in case of doubt in situation like this, the matter should be got clarified by the concerned Department of State Government. We find as pointed out by the respondent/assessee the State Government Authorities (Haryana and Maharashtra) and also legal Metrology Unit of Government of India, New Delhi have clarified that packages below 10 gms. are totally exempt from purview of SWM Rules. Packages containing 10 or more retail packages are considered as wholesale packages and need not carry "retail sale price" declaration. 8. Considering the above discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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