TMI Blog2019 (2) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... e 50 ml and 100 ml packs are not different from packs of similar sizes meant for sale - valuation rightly done u/s 5 of CEA - Appeal dismissed - decided against Revenue. - Appeal No. E/1513/2010 - A/30186/2019 - Dated:- 29-1-2019 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Shri C. Mallikarjun Reddy, Superintendent/AR for the Appellant. Shri B. Seetha Ramayya, Advocate for the Respondent. ORDER Per: P.V. Subba Rao. 1. This appeal has been filed by the revenue against the Order-in- Original No. 12/2010-CEx dated 08.04.2010. 2. The respondent herein is engaged in manufacture of ice creams of various flavours in different quantities and with different brand names. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for a penalty and c) Whether extended period is invokable or not. 3. He remarked that the ice creams were cleared by the respondents herein in 50 ml, 100 ml and 4 Ltr packs which were cleared to HLL. The dispute is regarding these ice creams which were sold by HLL, further to hotels/parlours/caterers etc. It is the case of the revenue in the show cause notice that such clearances should also be covered under Sec.4A while it is the case of the assessee that they are not covered by the provisions of Sec.4A because there is no retail sale price on such packs. Therefore, they are liable to pay excise duty under Sec.4 only. Learned Commissioner held that Sec.4A applies where the excisable goods are manufactured and sold in packaged for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Commissioner in respect of 50 ml and 100 ml packs is not correct and they should be valued as per Sec.4A. He submits that review was conducted on 50 ml and 100 ml packs and not for bulk packs of 4 Ltr. 5. Learned counsel for the respondent reiterates the findings of the Commissioner and asserts that the demands have been correctly dropped. He further submits that the 50 ml and 100 ml packs which were cleared by them were distinctly packed with no RSP printed on them as they were made only for caterers/ hotels etc. The caterers/ hotels do not sell ice creams in these packs and normally would serve it as a part of the entire food package which they supply. Therefore, they were clearly not covered by the provisions of Sec.4A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976, or the rules made there under or under any other law for the time being in force, to declare on the package thereof the retail sale price on the packages, Section 4A will not apply. As for example, in respect of bulk sale of ice cream to hotel/ restaurants, which are not meant for retail sales as such, the provisions of Weights and Measures Act will not apply. Chapter V of the Weights Measures (Packaged Commodities) Rules, 1977 mentions the instances where MRP is not required to be printed on the packages. Thus, in these cases valuation will have to be done under Section 4 of the CE Act, 1944. 25. From the above Board Circular, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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