TMI Blog2016 (3) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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. - Decided against revenue - Excise Appeal Nos. 59089 of 2013 and 1840 of 2007 with C.O. No. 61731 of 2013 - Final Order No. 50895-50896/2016 - Dated:- 19-2-2016 - SHRI S.K. MOHANTY, MEMBER (JUDICIAL) AND SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Respondent : Ms. Neha Garg, Authorized Representative (DR) For the Respondent : Shri K.S. Gupta, Consultant ORDER PER. B. RAVICHANDRAN :- These are two appeals filed by the Revenue are involving interconnected matters and hence, taken up for di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a multi-piece package . The individual pouches containing 6 gms. and 7 gms. of chewing tobacco are not governed by the SWM Rules in view of the exemption under Rule 34 of the said Rules. Aggrieved by this, the Revenue filed appeal before us. 3. Based on the above favourable order of the learned Commissioner (Appeals), the respondent filed a refund claim for ₹ 73,97,158/-. The claim was rejected by the Original Authority. On appeal, the learned Commissioner (Appeals) vide his order dated 3/5/2013 allowed the appeal with consequential relief. He observed that the Original Authority had denied the claim on two grounds First, that the documents are not legible and secondly that the appellants could not produce any evidence to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is not valid on this ground alone. On merit, regarding valuation of the impugned goods, the respondents submissions are as follows:- (a) The Chewing Tobacco manufactured by the respondent are put in pouches of below 10 gms. And many such pouches are put in wholesale package and cleared for sale. The package containing many small pouches are not intended for retail sale but are only wholesale packages; (b) Section 4A can be made applicable only in respect of those goods in relation to which they are required to declare on the packages retail sale price under the provisions of Standard Weights and Measures Act, 1976 or the Rules made thereunder. The impugned goods are packed in retail packages of 6 gms. and 7 gms. and as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect provision applicable for valuation of chewing tobacco manufactured and cleared by the respondent/assessee whether to be assessed in terms of Section 4 or Section 4A. The admitted facts are that the appellants are manufacturing and clearing chewing tobacco in pouches of 6/7 gms. under their brand name. Many such pouches (32/40/42/52) are put together in a polythene package and cleared to the dealers and stockist and thereafter to their retail sellers. It is the Revenues case that such package is to be considered as multi piece package and covered by regulations for MRP based assessment in terms of Section 4A readwith Notification 10/2003-CE (NT) dated 01/3/2003. We find that in the impugned order, the Commissioner (Appeals) examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zarda Udyog vs. CCE, Jaipur - I reported in 2012 - TIOL - 1073 - CESTAT - DEL., the Tribunal held that the chewing tobacco packed in pouches of less than 10 gms. and further packed in larger packs are not liable to RSP based assessment. Similarly, in Loknath Prasad Gupta vs. CCE, Kolkata - III reported in 2006 (204) E.L.T. 412 (Tri. - Kolkata), the Tribunal held that goods packed in 5 gms. and 9 gms. pouches and further 26 or 48 of such pouches then packed in polythene packets are not liable for RSP based assessment. These polythene packages do not satisfy the definition of multi piece packages. The Honble Supreme Court in CCE, Vapi vs. Kraftech Products reported in 2008 (224) E.L.T. 504 (S.C.) held that if the net weight of the commodity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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