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TMI Blog2019 (3) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... o 2006-07 and for 2007-08 involving Rs. 4,83,295/- and Rs. 2,33,479/- as liability to duties of central excise. Two more appeals lie against order-in-appeal no. YDB/261-262/Th-I/2011 dated 25th November 2011 and BR(281-282)/Th-I/2012 dated 19th November 2012 for the period from 2008-09 and 2009-10 disputing recovery of Rs. 4,12,904/- and Rs. 4,75,042/-. In sum, four appeals of the appellant company and two appeals of the individual are taken up for disposal in this common order. 2. Learned Counsel for the appellant submits that, though only one of the impugned 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 conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal which, vide order no. A/226-227/14/EB dated 4th March 2014, had remanded the matter back to the original authority who dropped proceedings thereon. 6. Likewise, it is his submission that, in the other matter for 2011- 12, the dropping of the demand at the first appellate stage had not been challenged by Revenue. Claiming that the settled position is that of 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in re Liberty Shoes Ltd is on scope of exclusion from the ambit of Standards of Weight and Measures (Packaged Commodities) Rules, 1977. Though rule 34 of the said Rules exclude certain specified categories from the prescription of incorporating maximum retail sale price, Learned Authorised Representative was unable to explain the applicability 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Unit-I) v. Commissioner of Central Excise, Trichy [2009 (238) ELT 655 (Tri. Chennai)]. The decision in re Grasim Industries Ltd may not offer Revenue much support as that was handed down in the context of a clarification given by the Legal Metrology Department and the dispute thereon pertained to the reliance that could be placed on it. In re Nova 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with indelible mark is violative of the notification itself. Learned Authorised Representative also informs us that the remand order of the Tribunal, referred to by the Learned Counsel for appellant, in Benison Footwear Pvt Ltd v. Commissioner of Central Excise, Thane - I [2014 (307) ELT 606 (Tri.-Mumbai)], was specific to the 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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