9911796707
Advanced Search 
TMI Blog2017 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... uty under Central Excise Tariff Heading 3305. PHD is packed in sachets of 3 gms. 6/8 such sachets are put in a mono-carton. The sachets as well as mono-cartons have printed MRP. The dispute in the present appeals is relating to the valuation of PHD cleared by the appellant to be made under Section 4 or Section 4A of Central Excise Act, 1944. In case it is decided that the value has to be in terms of Section 4 then the correct value for Central Excise duty under said section is also a point of dispute. The question of limitation was also raised against the demand by the appellant. 2. The Department held a view that the appellants were wrongly discharging duty by valuing the product under Section 4A (MRP based valuation), whereas the duty sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernments Sikkim and West Bengal. The Legal Metrology Department have categorically opined that a package containing less than 10 retail packages is not a wholesale package and if there is a mono-carton containing 6 or 8 sachets then it should be considered as a retail package. The Original Authority did not consider these opinions submitted by the appellant during the course of denovo adjudication. He relied on a letter dated 16/09/2015 issued by Legal Metrology Unit of Sikkim. However, a copy of reference made to the said Department by the Commissioner is not available. The opinion dated 16/09/2015 did not bring out the full facts applicable to the present case. In fact the conclusion only states that MRP on the package of sachets whose ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od in the trade as a retail pack, intended for sale. The retail outlets including reputed chain of stores like BIG Bazar etc. display the mono-cartons and sell the same to the customer in retail. The learned Counsel submitted that all the evidences clearly indicate that the products are required to be assessed in terms of Section 4A of the Act. He also submitted that as the appellant is enjoying area based exemption the whole issue is revenue neutral. Only because of certain disputes in interpretation of valuation of the product either under Section 4 or 4A, huge refund claims which are otherwise eligible to the appellant are held back by the Department. In any situation, the amount paid to the Department by the appellant is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity who are entrusted with implementation of the provisions of Legal Metrology Act and rules made thereunder are to be followed to arrive at the conclusion. Both the Department and the appellants did approach the Legal Metrology Department of Government of Sikkim. However, the copy of reference made by the Revenue is not available in the records. The opinion given on 16/09/2015 by the Deputy Director would indicate that the whole focus is on the sachet with net weight of 3 gms. In the absence of contents of reference made by the Revenue, we are not clear as to what type of facts are presented and what type of query has been made by the Revenue, which resulted in the said opinion. In any case, we have noted that the reference made by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 read as Provided that the declaration in respect of Maximum retail price and net quantity shall be declared on the packages containing 10 gms. To 20 gms. or 10 ml. to 20 ml . Hence a Mono Carton containing 6 or 8 sachets is a retail package and shall have to comply the Chapter II of all the Provisions wherever applicable of the Legal Metrology (Packaged Commodities) Rules 2011 including Mandatory Declarations and also Net Quantity requirement". 7. The appellants also made reference to the Legal Metrology Division, Department of Consumer Affairs, Government of India on 06/11/2015. The Assistant Director, Legal Metrology vide his letter dated 30/11/2015 clarified as below :- "The undersigned is directed to refer to your letter dated 6t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examining the categorical clarifications issued by the Central Government as well as the Government of Sikkim is not proper and sustainable. Further, as contended by the appellant, the Revenue did not bring any evidence to support the claim that the 3 gms. sachet is in fact a commonly traded retail pack in the market. On the contrary, the appellants produced supporting evidence to state that the mono-cartons containing multiple sachet are generally considered in retail trade as retail packs. We note here that as per the calculation chart submitted by the appellant during the course of hearing there were in fact excess payments due to re-computation of valuation by the Original Authority. We also note that the whole exercise is revenue neutr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
