TMI Blog2019 (3) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... Standards of Weights and Measures Act, 1976. In the case of goods which are assessable under Section 4A, when the goods are cleared to industrial consumers, as per the provisions of the Standards of Weights and Measures Act, there is no requirement to affix the M.R.P. In such cases, the goods would be assessable under Section 4 of the Central Excise Act, 1944 - In the present case, the Notification does not refer to the Standards of Weights and Measures Act, 1976. Thus, even if the goods are cleared to industrial consumers or otherwise, if they are sold to the ultimate consumer at a price which is not exceeding ₹ 500/- per piece, the clocks or watches would be eligible for the benefit of the Notification. The name of the industry/organization was engraved on the watches and the assessee has put forward a specific plea that these were sold to the industrial organizations for being distributed to their employees as complimentary gifts. The Department has not put forward any evidence to show that there has been a further sale by the industry/ organization to another person. Therefore, in the present case, the ultimate consumer is the industry/organization to which the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atches were sold at a price less than ₹ 500/-. Therefore, for sales other than the four instances, the benefit of the said Notification was not extended to the assessee. The Commissioner (Appeals) thus remanded the matter to the adjudicating authority to re-work the duty payable on the basis of the conclusion that for the remaining clearances, the concessional rate of duty of 8% would not be eligible to the assessee. Aggrieved by such Order that the watches are assessable to duty under Section 4A and disallowance of concessional rate of duty for major part of the clearances, the assessee has filed Appeal No. E/516/2010. 3.2 Against the very same Order, the Department has filed Appeal No. E/496/2010 aggrieved by the concession granted by the Commissioner (Appeals) for certain clearances. 4.1 On behalf of the assessee, Ld. Advocate Ms. Radhika Chandrasekhar appeared and argued the matter. She submitted that the assessee has supplied watches in bulk to institutional customers like M/s. Ranbaxy Ltd., M/s. Tata Tele Services Ltd., M/s. Varun Beverages Ltd., Noida, M/s. Honda Motors Ltd. and M/s. Ashok Leyland Ltd. The appellants have paid excise duty at the rate of 8% for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding and the like and the said price is the sole consideration for sale or clearances made to the institutions. The Department has not established, by any evidence, that the assessee has collected more than ₹ 500/- per watch from the institutions. The watches are thus sold at a contract price of less than ₹ 500/- to institutional customers and they were not sold on M.R.P. basis. The duty was discharged adopting Section 4, the contract price being the assessable value. 4.4 The intention of the exemption Notification was to extend the benefit of concessional duty to those goods which are assessed under Section 4 of the Act when sold at a price less than ₹ 500/-. There is no reference in Notification No. 10/2003 that the goods which are subject to assessment under Section 4A of the Central Excise Act alone would be eligible to concessional rate of duty if the M.R.P. (RSP) is below ₹ 500/-. Explanation II of the Notification defines retail sale price. It is clear that irrespective of the assessing mechanism, being under Section 4 or under Section 4A of the Central Excise Act, 1944, the benefit of Notification No. 10/2003 would be available. She argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of retail sale price, which is the criteria prescribed in the Notification. In the absence of retail sale price, the assessee is not eligible for availing exemption under Notification No. 10/2003. 5.4 The decision of the Hon ble Supreme Court in the case of M/s. Jayanti Food Processing (P) Ltd. Vs. Commissioner of C.Ex., Rajasthan - 2007 (215) E.L.T. 327 (S.C.) covers the issue under consideration. The Hon ble Apex Court has clearly held that in a situation of bulk sale to institutional organizations where the M.R.P. has not been indicated, valuation has to be done as per Section 4 of the Act. In the present case, the assessee has sold their watches to institutional consumers like M/s. Ashok Leyland, M/s. Honda Motors. There is no evidence that it was not sold to ultimate consumers. Hence, the ratio of the decision in the case of M/s. Jayanti Food Processing (P) Ltd. (supra) would be rightly applicable. 5.5 In such circumstances, the impugned goods are to be assessed under Section 4A of the Central Excise Act and consequently, in the absence of retail sale price on the packages, the assessee are not eligible for exemption under Notification No. 10/2003. The Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail sale price . Sub-Rule (1) of Section 4A provides that the Central Government may, by Notification in the Official Gazette, specify any goods in relation to which it is required under the provisions of the Legal Metrology Act, 2009 (Standards of Weights and Measures Act, 1976) or the rules made thereunder or under any other law for the time being in force to declare on the package thereof the retail sale price of such goods to which the provisions of Sub-Section (2) shall apply. Thus, Section 4A has a reference to the Standards of Weights and Measures Act, 1976. However, the Notification does not have any reference to the Standards of Weights and Measures Act, 1976. It can be understood that the definition of retail sale price given in the Notification is only for the purposes of the Notification. The retail sale price in the Notification, therefore, cannot be stretched to the application of the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as the SWM Act and Rules ). The Notification does not lay down that the benefit is applicable only to goods to which the SWM Act and Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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