TMI Blog2019 (3) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... lso a third category, viz., that of goods that are marked with a retail price of over ₹ 750/- per unit. The manner in which the entitlement to the exemption, or concession is to be extended is prescribed in the notification itself, i.e. by embossing or marking with indelible ink. It is not the case of the Learned Counsel for appellant that the goods were marked. Mere existence of the invoices submitted in routine will not suffice for restricting the demand to the normal period. It is on record that the appellant-company had filed returns but without indicating that the goods were not marked but affixed with stickers. The provisions of the notification are also crystal clear and it was incumbent upon the appellants to comply with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders has invoked the extended period, imposition of penalty under section 11AC in all the orders has been erroneously upheld by the first appellate authority. It is also his contention that the extended period, covering 2003-04 to 2006-07, could not have been invoked in a show cause notice dated 16th January 2009 as the appellant had disclosed all the invoices as early as in 2002. 3. Learned Authorised Representative counters this claim of bar of limitation on the ground that the submission of invoices itself does not stand in the way of invoking the extended period as the appellant had deliberately misled central excise authorities in the statutory returns. 4. Learned Counsel informs us that the entire case of Revenue rests o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f eligibility for the concession on the ground that the markings were sufficient, he demanded that consistency of approach precluded Revenue from taking a contrary stand in the present appeals. In this context, he also draws our attention to the second pillar, viz., valuation of the goods being outside the scope of coverage by section 4 of Central Excise Act, 1944, owing to the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977. 7. We have considered the rival submissions and perused the decision cited by both sides. The Hon ble Supreme Court, in Commissioner of Central Excise, Panchkula v. Liberty Shoes Ltd [2015 (326) ELT 422 (SC)], has held that 12. Once we find that the footwear is an item which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of this provision. In our opinion, the reference to industry , prior to 1st January 2007, in rule 34 is limited to such goods as are found to have specific use in specific industries and is not a reference to any manufacturing establishments or orders by such manufacturing establishments. Furthermore, we find that this exclusion has since been transposed to chapter 2 of the said Rules which, consequently, ceases to enable application of the provisions of that chapter to clearances effected to institutional buyers and industrial consumers. Institutional buyer, by definition, is a provider of service and any goods required for the provision of such service has deliberately been kept out of the purview of the prescriptions mandated in chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Paints, the matter in dispute was the specialized packaging provided to the goods attended with the claim that the goods were not for general use. In re Charms Cosmetics Pvt Ltd, it was held that supply of goods to Canteen Stores Department was the point of evaluation of applicability and not the status of downstream purchases. All these are specific to facts of specific situations that would not apply to the issue in the present dispute. 9. The question that arises for determination is whether it is mandated that the goods be marked with the price. On a perusal of the provisions of the Rules, we find that footwear is covered within the ambit of the Rules and, in such circumstances, the contention that these are not required to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context of a finding that the marking did exist on the footwear and that the lower authorities were merely required to follow the test results obtained from the Indian Institute of Packaging and National Test House made on those consignments. On the other hand, we find nothing on record in the present instance that the goods now impugned were marked or subject to testing. In the absence of such evidence, and in view of the admitted fact that stickers were the only means of indicating the retail sale price, we find no reason to hold that the condition of the notification has been complied with. 11. The reliance placed by the Learned Counsel for appellants on the decision in Rupani Shoes Footwear Products [2007 (210) ELT 309 (Commr. App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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