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TMI Blog2019 (1) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of chewing tobacco which is being cleared in multi-piece packages containing pre determined number of pouches of chewing tobacco printed with description of goods, weight and MRP on each pouch and the multi package. However, the Department on scrutiny of ER-I return for the month of March 2015 to December 2015 observed that the assesse was clearing the pouches containing chewing tobacco on the payment of duty on the transaction value in terms of Section 4 of the Central Excise Act, 1944 (hereinafter referred to as the Act). Department alleged that chewing tobacco is an excisable commodity hence the provisions of Section 4A of the Act instead of Section 4 thereof shall apply. Resultantly, while alleging the short payment of duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction value of Section 4 thereof, the same is definitely a short levy and was rightly confirmed by the original Adjudicating Authority. Commissioner (Appeals) has committed an error while ignoring the applicability of Section 4A and the fact that the assesse has failed to declare the MRP on the multi piece package. Order accordingly is liable to be set aside. 5. While rebutting these arguments it is submitted on behalf of the assesse/ respondent that issue has already been settled in favour of the assesse not only by this Tribunal but even by the Hon'ble Apex Court. The decision in the case of CCE, Rohtak Vs. Gupta Tobacco Company 2014 (301) E.L.T. A70 (S.C.) has been impressed upon. A prior decision of the Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta Tobacco Company (supra) case has already held that chewing tobacco was not capable of being sold in numbers but were sold in weights of 6, 8 and 9 gram pouches. There is no requirement for MRP under SWM Rules. The said decision has been upheld by the Hon'ble Apex Court. Similar are the findings of Hon'ble Apex Court in Makson Confectionery (supra) case. 7. Both the Show Cause Notices herein are based on the assumption that assessment in terms of Section 4A instead of Section 4 of the Act has to be made by the assesse thereby alleging the short levy. Section 4A of the Act envisages that the Central Government may vide the Notification in official Gazzetted specify any goods in relation to which it is required under the provisions of Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate consumer. Being less than 10 grams, the said pouch is exempted to declare the retail price on the package in terms of Rule 26 of Legal Metrology (PC) Rules, 2011. This particular finding also supports non applicability of Section 4A of the Act. Coming to the multi piece package of the assesse it is an admission that assesse has declared the number of retail packages in multi piece package, weight of each retail package and MRP affixed thereon. To our opinion, multi piece packages in such circumstances, does not require MRP to be fixed for the simple reason that such multi piece package is a wholesale package as per the definition in Rule 2(R) of Legal Metrology (PC) Rules, 2011. It reads as follows: "Rule 2(r):-"Wholesale Package" mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the MRP. As already observed above, the retail packages in the present case were exempted from declaring the retail price being less than 10 grams in weight. There was no need for assesse to declare the price on the multi piece package which actually was a wholesale package. The wholesale package requires the declaration only about the name and address of the manufacturer/ packer, the identity of commodity contained in the package and the total number of retail packages contained in a wholesale package or the net quantity. Once there was no such requirement of declaring MRP, the question of valuation in accordance of Section 4A of the Act does not arise. We draw our support from the latest decision of this Tribunal in the case of C.C.E., Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rams 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 grams or 9 grams 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 pack to be sold to a retailer and not to ultimate consumer assessment under Section 4A is not sustainable. The said Order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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