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M/s Continental Milkose India Ltd. Versus Commr. of Central Excise, C. Ex. & S. Tax, Noida

2016 (7) TMI 887 - CESTAT ALLAHABAD

MRP Based duty u/s 4A or transaction value u/s 4 - bulk supply of malted milk food, malted food and malt extract powder etc. - sale of rejected lot to other customer - Held that:- the issue is no longer res-integra, as the revenue have accepted that in case of bulk sale made by the appellant, without affixing MRP to the institutional customers and sale of rejected lot to other customer on as is where is basis the provisions of Standards of Weight & Measurements Act, 1976 or the Legal Metrology ( .....

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, both Advocates for the Appellant(s) Shri Rajeev Ranjan, Joint Commr. (D.R.) for the Department ORDER In Ex. Appeal No.3009/12, the appellant is in appeal for the period May 2007 to September 2010 against the order passed by the Commissioner (Appeals), Customs and Central Excise, Noida dated 18/6/12, whereas in Ex. Appeal No.58566/13, the appellant is in appeal against order passed by the Commissioner of Central Excise, Noida dated 31/3/2013 for the period October, 2011 to March, 2012. 2. The b .....

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manufactured bearing MRP were stock transferred to their Guwahati office and the duty was assessed under section 4A of the Act after allowing abatement on the MRP as eligble. It appeared to revenue that the goods supplied in bulk to Defence, Govt. of India, wherein no MRP is mentioned on the packages are also assessable under the provisions of Section 4A of the Act, instead of Section 4 as done by the appellants in view of Notification No. 2/2006-CE (NT) and Notification No. 14/2008-CE (NT) as a .....

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and the goods sold by the appellants were packed in 6 KG packs which were further bulk packed in cartoon box. Accordingly, the provisions of Notification No.2/2006 are not attracted in their case. As it appeared to revenue that the goods sold in bulk are also assessable under Section 4A of the Act, show cause notices were issued demanding duty short paid, requiring the appellant to show cause as to why not the goods be assessed under Section 4A of the Act and the duty allegedly short paid be not .....

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r the contract for supply on wholesale basis under DGS & D rate contract dated 9/12/2005. As in the course of inspection by DGS & D, the goods were rejected and the appellant did not supply the same to Defence during some part of the impugned period. In such circumstances, the appellant could not locate a buyer, who accepted to buy the rejected goods on as is where is basis and accordingly, sold in bulk itself, assessing the duty under Section 4 of the Central Excise Act, on the transact .....

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tail sale price thereupon under the provisions of the Standard Weight and Measurement Act, 1976 and Rules made thereunder. The view from a plain language of the Section, whether the goods are excisable and packaged and further such packages are required to mention the MRP thereon under the SWM Act and Rules made thereunder or under any other law and further such goods as specified by the Central Government by Notification, then the valuation of such goods would be on the basis of the retail sale .....

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on "retail sale" is defined under Rule 2 (q) and for the relevant period, the definition of retail sale, in relation to the commodity was that, the sale distribution or delivery of such commodity through retail sale agencies or other Instrumentality to an individual or a group of individuals or any other consumer. Further, the retail pack was defined to mean a package containing any commodity which is produced, distributed, displayed, delivered or stored, through retail sale agency etc .....

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itutional consumers. Under the explanation to the rule "institutional consumer" means those consumers who buy a package commodity directly from the manufacturer for use in service industry like transportation including railways, airways, hotels or any other similar service industries. 3. The SCN was adjudicated and the demands were confirmed with interest and further equal amount of penalty was imposed under the provisions of Rule 25 read with Section 11 AC of the Act. In Ex. Appeal No .....

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