TMI Blog2018 (11) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be said the appellant is not clearing the goods to institutional buyers. Therefore, the appellant has discharged duty in terms of Section 4A of the Act. The issue decided in the case of JAYANTI FOOD PROCESSING (P) LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAJASTHAN [2007 (8) TMI 3 - SUPREME COURT], where it was held that there is no question of the applicability of Section 4 of the Act as the “package” as it is a retail sale of the package to the Jet Airways which supplies the same to the passengers on demand. Appeal allowed - decided in favor of appellant. - Appeal No. E/1265/2012-EX (DB) - A/63243/2018-EX[DB] - Dated:- 29-8-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mineral water and clearing the same to PVRs, who are further selling to their consumers and MRP has been affixed on the mineral water. The said goods are notified in terms of Section 4A and these goods are not sold to institutional buyers. In that circumstance, the appellant has correctly discharged duty in terms of Section 4A of the Act. He also took support of the decision of Hon ble Apex Court in the case of Jayanti Food Processing (P) Limited vs. CCE, Rajasthan-2007 (215) ELT 327 (SC). 4. On the other hand, Ld.AR opposed the contention of the Ld. Counsel and submits that as the appellant is clearing mineral water to institutional buyers i.e. PVRs in bulk, therefore, the appellant is liable to pay duty under Section 4 of the Act. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant Revenue drew a parallel with Jayanti Food s case and urged that the valuation is bound to be under Section 4 of the Act as the Tribunal had incorrectly held that the package would be a retail package . Learned Counsel relied on the definition of wholesale package under Rule 2(x) of the SWM (PC) Rules and pointed out that the package in question came within the definition of wholesale package as there are a number of retail packages in the form of Mineral Water Bottles in that one package and further the said package is not intended for sale directly to a single consumer. These bottles which were of 200 ml. capacity were not meant for sale directly to a single consumer. He, therefore, urges that this matter was iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of Rule 2(x)(i) as the package was not intended for sale, distribution or delivery to an intermediary. On the other hand it is sold directly to Jet Airway and the Jet Airways supplied the said bottles to their passengers and thus there is no further sale by the Jet Airways of these bottles. Therefore, it is obvious that after the first sale bottles go directly to the ultimate consumers . There would be, therefore, no question of application of Rule 2(x)(i). Rule 2(x)(ii) will also not apply as this does not amount to a commodity sole to an intermediary in bulk so as to enable such intermediary to sell, distribute or deliver, the said commodity to the consumer in smaller quantities. The concerned period regarding which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, in units suitable for sale, whether wholesale or retail. Twelve bottles were packed in a wrapper and the wrapper contained the MRP price though the bottles themselves did not have the price. Therefore, we accept the view taken by the Commissioner (Appeals) and the Tribunal that the MRP was correctly mentioned and as such the assessment should have been under Section 4A of the Act and not for the reasons given by the Tribunal that we uphold the ultimate verdict of the Tribunal that the valuation should be under Section 4A of the Act. We accordingly dismiss the appeals filed by the Department but without any order as to costs. 7. As there is only dispute whether the PVRs are institutional buyers, who are ultimately selli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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