TMI Blog2016 (7) TMI 1420X X X X Extracts X X X X X X X X Extracts X X X X ..... t made any declaration that "the packages are not meant for retail sale or the packages are meant for use by any specified industry". In the absence of such markings on the packages, it cannot be said that the goods supplied were not in retail packages. The order of Commissioner (Appeals) dated 27.02.2013 interalia that the duty liability shall be determined under Sl. No. 1A of the Notification No. 4/2006 dated 01.03.2006, does not require any interference - appeal dismissed - decided against Revenue. - Appeal No. E/26805/2013 - - - Dated:- 27-7-2016 - Madhu Mohan Damodhar For the Appellant: Sh. Arun Kumar, Deputy Commissioner (AR) For the Respondent: Sh. G. Prahlad, Advocate [Order per: Madhu Mohan Damodhar] Facts of the case put forth by the appellant are as follows: The appellants are manufacturers of Cement and Clinker falling under Chapter 25 of the CETA, 1985. On verification of the records, it was noticed that the assessee were discharging duty on clearances of cement in terms of SI. No.1A of the Notification No.4/2006-CE dated 1.3.2006 by treating the sales M/s. Andhra Pradesh State Housing Corporation Limited (herein after referred to as (APSHCL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o APSHCL are not covered under SWM (PC) Rules, 1977 and hence they were not required to print the RSP on the cement bags in as much as their sales are not retail sales and therefore their goods are covered under SI. No. 1C of Notification No. 4/2006-CE, dated 01.03.2006 as amended attracting the duties specified therein. Further, printing of the agreed price as RSP on the cement packages is not the correct RSP as the same was lower than the prevailing RSP for the said product for a given area and time. The same was also not in conformity to retail sale price as defined under rule 2(r) of SWM (PC) Rules, 1977. Therefore, the Order issued by the Commissioner (Appeals-I), Hyderabad is not proper and legal. (ii) Reliance placed by the Appellate Commissioner in the decision of the Hon ble Tribunal, Bangalore in the case of Hyderabad-III Commissionerate Vs. Sagar Cements Ltd [2010 (256) ELT 616 (Tn. Bang)] appears to be incorrect, as the said decision has not attained finality in view of the Review Petition filed by the department which has been admitted by the Honble Apex Court. The Hon ble Supreme court vide Review Petition (Civil) Nos. 2217-2221 of 2012 dated 05.03.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mum Retail Price......inclusive of all taxes and also is informed that every package shall bear the name, address, telephone number, e-mail address, if available, of the person who can be or the office which can be, contacted, in case of consumer complaints as required under Rule 6(1A) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. 10. It is therefore seen that facts of the case under appeal can be distinguished from the facts of the M/s Sagar Cements case. In the present matter competent authority, namely, the Controller, Legal Metrology, Hyderabad had clarified that declaration on cement packages should be in the manner as Maximum Retail Price........inclusive of all taxes . In the circumstances, the fact of the Hon ble Apex Supreme Court admitting the review petition filed by department and also recalling its order in earlier civil appeal filed by the department in the M/s Sagar Cements case, will not, in my opinion, affect the present appeal. Once the Legal Metrology authorities have clarified and informed the appellants that supplies made by them even to institutional buyers are not excluded from the declaration of MRP under the Packaged C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al consumer are excluded from the provisions of Packaged Commodities Rules and such packages should have a further marking that they are not meant for retail sale. From these clarifications, which have been issued by the authorities implementing the Legal Metrology (Packaged Commodities) Rules, 2011, it is absolutely clear that the supplies made by the appellant to the various institutional buyers are not excluded from the declaration of MRP under the Packaged Commodities Rules. We cannot disregard these clarifications given by the competent authorities in the matter. 5.1. We further observe that the Hon ble Apex Court in the case of Jayanti Food Processing (P) Ltd. v. Commissioner of Central Excise, Rajasthan (supra), had clearly held that to come under the purview of Section 4A, the following conditions should be satisfied: (i) The goods should be excisable goods; (ii) They should be such as are sold in the package; (iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package; (iv) The Central Government must have specified such goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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