TMI Blog2017 (8) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... o, there is no material on record that such wholesale packages were marked with MRP or where intended for retail sale. The appellant was entitled to assessment to duty under the provisions of Section 4 of the Central Excise Act in respect of the retail packages in question - appeal allowed - decided in favor of appellant. - Appeal No. E/1759, 1760 & 1761/2010-EX [DB] - Final Order No. 70639 - 70641/2017 - Dated:- 6-7-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri S. D. Gaur (Consultant) for Appellant Shri Rajeev Ranjan (Joint Commissioner) for Respondent ORDER Per: Anil Choudhary The issue in appeals is whether the appellant assessee have paid excise duty correctly under the provisions of Section 4 of the Act, instead of Section 4A. Further issue is whether the show cause notice is barred by extended period of limitation. 2. The brief facts are that the appellant Jagannath Dalip Singh, is manufacturer of Branded Chewing Tobacco under the brand name MOAR CHHAP falling under Tariff item No. 24039910 of the first schedule to the Central Excise Tariff Act, 1985 with effect from 01/03/2005. The other two a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different grams during the period 2004 to 2008. The statement of one Mr. Vinod Kumar Tyagi, the authorized Representative of the appellant was recorded under Section 14 on 01/04/2009, who inter alia stated as under: (i) That during the period beginning from 01/03/2004 to 31/03/2008, they had inter alia manufactured the Purias of 9gm with MRP printed on it. (ii) That after 01/03/2004, they have paid Central Excise duty on the packages of 9gm under Section 4 of the Act. (iii) That inter alia, they have cleared the 9gm packages as packed in Multi-piece pack, in the following manner: (a) 9 gms x 20 Purias (b) 9 gms x 27 Purias (iv) That they sell their products to the traders with MRP printed on it, who sell it in the retail. (v) That they are enclosing a detailed chart, year wise, month wise, packing wise details of the value under Section 4 or 4A of the Act, as the case may be, along with MRP wherever it was available with them of their products for the period beginning from 01/03/2006 to 31/03/2008. (vi) That with regard to the MRP of the product cleared during the period beginning from March 2004 to March 2006, the same is neither available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in the packing below 20 gms/10 gms, but actually clearing the same in a multi-piece pack of 180 g/243 g (9.0 gms x 20 Purias = 180 gms and 9.0 gms x 27 Purias = 243 gms). This appeared to be the position up to 12/01/2007 and after amendment of Rule 2(j) and doing away with legal concept of multi-piece package under SWAMPCR, single 9.0 gms Purias also do not appear to get benefit of Rule 34(b) for aforesaid reasons. Further Rule 2(j) of SWAMPCR reads as follows multi-piece package means a package containing two or more individual packaged or labeled pieces of the same commodities of identical quantity intended for retail sale, either in individual pieces or the package as a whole; Illustration : a package containing 5 toilet soap cakes net weight 20gm each, total net weight 100gm is a multi-piece package. Accordingly, it appeared that in the facts of this case one package (multi-piece package) contains 20/27 Purias of 9.0gms, each as stated in para 2 above, and the total weight of one package is 180gms/243gms. Further, the provisions of Rule 17 of SWAMPCR provides Additional declaration to be made on multi-piece package But every multi-piece packet shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The contention of the petitioner that exemption under Rule 34 would be applicable is not acceptable. Even though the net weight is less than 10gms, it is evident that the article is not intended to be sold, either by weight or by measure as contemplated under Rule 34(b). The contention that clarification issued by Respondent No. 1, has the effect of whittling down the exemption granted under Rule 34, is not at all acceptable. Reliance is also placed on the CBEC Circular No. 492/58/99 CX dated 02/11/1999, wherein the board was clarified the doubts raised as regards charging of such duty with reference to MRP under Section 4A in respect of multi-piece packages on the basis of claim made by certain manufacturers, that there is no requirement for declaration of retail sale price on such packages under SWAMPCR or any other Rule made thereunder. Upon consideration, the Board examined the definition of multi-piece package, which means a package containing two or more individual packaged or labeled pieces of the same commodity of identical quantity, intended for retail sale, either in individual pieces or the package as the whole. Illustration : A package containing 5 toilet soap ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5gms 47,971.00 notices. The details of which are as under:- The show cause notices were confirmed vide Order-in-Original dated 29 March 2002, and proposed demand confirmed with equal amount of penalty. Further penalty of 15 lakhs each was also imposed on the partner(s) of Jagannath Dalip Singh, namely - Arun Kumar and Gulab Singh under Rule 26 of CER. Being aggrieved appellants are before this Tribunal. The Learned Counsel for the appellant states that it is nowhere the case of Revenue that the bigger pouches of 20/27 purias were having retail sale price, MRP/RSP on them. The Learned Counsel further states the bigger pouches were meant for sale in wholesale, to the intermediaries in trade, and there is no evidence brought on record by the Revenue that such bigger pouches containing 20/27 tobacco purias were also being sold in retail market at MRP/RSP. It is mentioned in para 4.2 of the impugned order by the Learned Commissioner as follows: I observed that Shri V.K. Tyagi, authorized representative of the party in his statement dated 01/04/2009, recorded under Section 14 of the Central Excise Act, 1944 admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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