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Radha Tobacco Co. Versus Commissioner of Central Excise Kanpur

2016 (7) TMI 768 - CESTAT ALLAHABAD

MRP based duty - undervaluation - clearance from unit-I to unit-II - branded chewing tobacco - pouches, weighing 5 gms each - whether the multi-piece packs from the factory are intended for retail sale as claimed by the appellant and whether such goods intended for retail sale are required to be printed with Maximum Retail Price under the Standards of Weights & Measures (Packaged Commodities) Rules, 1977. - Held that:- Tax arbitrage is a reality that cannot be wished away or suppressed by ex .....

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cise at the retail sale point. - As long as consumer interest is served, higher revenue from the alternative valuation cannot be a determinant of proper valuation. - It is thus, unambiguously clear that the manner of retail packing - whether as a pouch of less than 10 gm/ 10 ml or as multi-piece packet is a marketing decision of the manufacturer. Being an ascertainable fact, the Tribunal has constantly held that affixing the retail selling price on the multi-piece packet is a clear indi .....

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m the relevant invoices if the goods have, indeed, been cleared as multi-piece packs with retail selling price affixed on them and to limit demand of differential duty only to the extent that the clearances not made in multi-piece packs or in multi-piece packs that do not bear the retail selling price. - Decided partly in favor of assessee. - E/3643 to 3647/2006 - Final Order No. 70197 to 70201/2016 - Dated:- 19-11-2015 - Shri Anil Choudhary, Member (Judicial) and Shri C J Mathew, Member (Techni .....

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ce with section 4A of Central Excise Act, 1944. They had been issued with five notices for the period April 2003 to December 2003, January 2004 to August 2004 and from September 2004 to March 2005 in relation to clearances from Unit I and for the period between May 2003 to December 2003 and from January 2004 to March 2004 for clearances from Unit II. The appellant packs the chewing tobacco in pouches of 5 gms. and 26 of these pouches are then placed in polythene pack on which Maximum Retail Pric .....

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ich placed them outside the ambit of valuation under section 4A and, therefore, required to be assessed as per section 4 of Central Excise Act, 1944. 3. Before the lower authorities, the appellant had been asserting the correctness of its action owing to notification no. 15/2002-CE (NT) dated 1st March 2002, amended by notification no. 10/2003-CE (NT) dated 1st March 2003, that rendered 'chewing tobacco' and preparations containing chewing tobacco' classifiable under 2404.41 to be as .....

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4A of Central Excise Act, 1944 is subject to fulfillment of two conditions viz. that the goods should be notified for coverage under section 4A and that the Standards of Weight and Measures (Packaged Commodities) Rules, 1977 prescribes printing of Retail Selling Price on the package. Our attention was drawn to the exemption in Standards of Weight & Measures (Packaged Commodities) Rules, 1977 to retail packing that holds less than 10 gm or contain less than 10 ml. of the product otherwise re .....

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Confectionery Pvt Ltd [2010 )259) ELT 5 (SC)] which placed the seal of approval on the decision of the Tribunal in re M/s Swan Sweets Pvt Ltd [2006 (1982) ELT 565 (Tribunal)] and followed by the Tribunal in Central Arecanut and Cocoa Marketing & Processing Co-op. Ltd v. Commissioner of Central Excise, Mangalore [2008 (228) ELT 369 (Tribunal)]. Likewise, he cited the decision of the Tribunal in Venkateswara Cans Pvt Ltd v. Commissioner of Central Excise, Mumbai [2015 (320) ELT 651 (Tri. -Mum .....

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no. 10/2003CE(NT) dated 1st March 2003. Admittedly, the goods cleared by the appellants are chewing tobacco falling under 2404.41 of Schedule to the Central Excise Tariff Act, 1985 and are packed in pouches that are printed with the maximum retail price. These pouches, weighing 5 gms each, are exempt from application of Rules supra and if cleared as such or in wholesale packs, are subject to duty in accordance with section 4 of Central Excise Act, 1944. These, however, are, in turn, packed in po .....

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e Standards of Weights & Measures (Packaged Commodities) Rules, 1977. 8. It is amply clear that a pre-condition for assessment under section 4A of Central Excise Act, 1944 is the mandate to clear packaged goods with Maximum Retail Price printed on them. However, the Central Excise Act, 1944 being a taxation statute, cannot mandate the printing of Maximum Retail Price on the package cleared from the factory. That mandate must emanate from elsewhere i.e., the Standards of Weights & Measure .....

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consideration may require more than one intermediary between the factory of production and point of retail sale. Packaging is as much a property of the manufacturer as the produce itself. That self-interest is sufficient to enforce the prescription when the package is cleared from the factory. The intention for sale in retail is demonstrated only when the goods so packaged are deployed at the point of retail sale. The mandate under the Rule is not enforceable at any point before that. The inten .....

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ack suffices to express the intent of the producers of the goods and owner brand to market the multi-pack is apparent from the Rules. 11. We notice that both sides have cited judicial decisions to support their rival contentions. That both sides are able to do so is not indicative of disparate interpretations. On the contrary, all of them are consistent in not accepting the contentions of Revenue which challenges the self-assessment under section 4 or section 4A according to its computation of d .....

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valuation outcome that weighs with the assessee in complying with the prescription of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977 and which cannot be resisted if otherwise compliant. Enforcement is the responsibility of officials of both Legal Metrology and the Central Excise at the retail sale point. As long as consumer interest is served, higher revenue from the alternative valuation cannot be a determinant of proper valuation. 13. The appellant claims that their pro .....

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g the clear intention that such multi-piece package also was intended for retail sale. " 14. In re Swan Sweets Pvt Ltd. also the Tribunal "The PC Rules use the expression "intended for retail sale " at numerous places in order to define whenever and wherever a particular set of information is required to be given on a package. Whether a packaged commodity is intended for retail sale or not will depend on the persons who organize the distribution and sale of the product and on .....

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