TMI Blog2017 (9) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... t the bigger package containing multiple pieces of small retail package never carry any MRP for the sale of such package. In other words, there is no evidence on record to show that the larger package ‘(multi piece package)’ is ever intended to be a retail package for a retail consumer. Similar set of facts came up for consideration before the Tribunal in the case of CCE, Delhi – I Vs. Shakti Zarda Factory India Pvt. Ltd. [2017 (1) TMI 970 - CESTAT NEW DELHI], where it was held that the impugned goods cannot be subjected to as MRP based assessment under Section 4A. Consequent upon deletion of the provision of Rule 2 (j) and Rule 17 of Packaged Commodities Rules w.e.f. 14/01/2007 the impugned order correctly applied the legal provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of branded chewing tobacco liable to Central Excise duty, the nature of packing and practice of sale as captured in one of the show cause notices is as below :- S.No. Description printed on multipiece packages Description printed on each pouch 1. NATRAJ Lime mixed Zarda Net Weight : (10gm x 27) When packed MRP (Rs.2/- per pouch) Max. Unit Sale Price (Rs.2/- x 27 pouch) NATRAJ Lime mixed Zarda Net Weight 10 gms when packed M.R.P. ₹ 2.00 2. NATRAJ Lime mixed Zarda Weight : (4gm x 32) MRP (Rs.1/- per pouch) Max. Unit Sale Price (Rs.1/- x 32 pouch) NATRAJ Lime mixed Zarda Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 4A of the Act . 3. Series of show cause notices were issued with identical allegations. The notices proposed assessment of impugned goods in terms of Section 4A holding that the appellant/assessee cleared branded chewing tobacco in multi-piece retail packages and, as such, the assessment is to be done under the said section. When the matter reached the Commissioner (Appeals), he held that the appellant/assessee is liable to assess the impugned goods in terms of Section 4A upto 13/01/2007 and thereafter in terms of Section 4 of the Central Excise Act, 1944. For the period prior to 13/01/2007 he confirmed a differential duty of ₹ 10,74,940/- and imposed a penalty of ₹ 5,37,470/- under Rule 25 of Central Excise Rules, 2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 4A in view of the decision of the Tribunal in their own case 2012 (276) E.L.T. 77 (Tri. Del.), which has been affirmed by the Hon ble Supreme Court in - 2014 (301) E.L.T. A103 (S.C .). However, he submitted that there is no case for imposing penalty in situation like this, which is involving purely interpretation of the applicable valuation provision readwith the provisions of legal metrology dealing with Weights and Measures and retail packing. There can be no case for imposition of penalty in a matter which has been regularly litigated upon and in many case reached upto the Apex court level. 7. We have considered the submissions of both the sides and perused the appeal records. The facts of the case are not in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal held that chewing tobacco was not capable of being sold in numbers but was sold in weights of 5, 7 and 9 gms. pouches with no requirement for MRP under SWM Rules. The said decision has been upheld by the Hon ble Supreme Court (supra). In Loknath Prasad Gupta (supra), the Tribunal held that 25 pouches of Khaini each containing 5 gms./ 9 gms. packed in polythene packs without MRP in such package is not governed by valuation under Section 4A. This order of the Tribunal has been affirmed by the Hon ble Supreme Court (supra). In Swan Sweets Pvt. Ltd. (supra) , the Tribunal examined, in detail, the implication of the terms intended for retail sale and sold to ultimate consumer . When the manufacturer intends the wholesale pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 4A of the Central Excise Act, 1944 and applicable provisions of SWM Act and Rules made thereunder and on close scrutiny of impugned order and the grounds of appeal, we find that the impugned goods cannot be subjected to as MRP based assessment under Section 4A. The findings of the lower authority in the impugned orders are legally sustainable. The refund involved in one of the appeals allowed by the Commissioner (Appeals) shall be granted after due scrutiny of documents as per the requirement of the applicable provisions . 9. The Hon ble Supreme Court in CCE, Rajkot, Gujarat Vs. Makson Confectionery Pvt. Ltd. 2010 (259) E.L.T. 5 (S.C.) upheld the valuation under Section 4 on the same ratio. 10. We note that consequent upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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