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2019 (5) TMI 507

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..... ld in retail must have the MRP printed on it. From above it is apparent that the provisions are attracted only on goods offered for retail sale . In the impugned order, it is seen that the words offered for retail sale appearing in DPCO 1995 have been overlooked. In the instant case the evidence brought on record does not dispute the claim that the goods sold to institutional buyers were not sold (or offered for sale) in retail sale - The provisions of para 14 and 15 of DPCO 1995 are not attracted in respect of sales to institutional buyers which are not further offered for retail sale. The demand, therefore, cannot be upheld - penalties set aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/779-781, 791/2011, E/655-657/2012 And E/14019-14021/2013-DB - A/10790-10799/2019 - Dated:- 6-5-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri. Medhavin Baxi (Advocate) for Appellant Shri. Nitina Nagori (A.R.) for Respondent ORDER Per: RAJU These appeals have been filed by M/s Usv Ltd., Parvej K Kumana, Dilip A Pandit, Jayesh K Vasava .....

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..... that the provisions of Notification 2/2005-CE(NT) are not attracted in the facts of the case in respect of the clearances made to institutional buyers. He argued that in such circumstances Section 4A of the Central Excise Act, 1944 cannot be invoked for assessment of goods on MRP basis in respect of supplies made to institutional buyers. He pointed out that bulk packs and the containers clearly had a marking Hospital supply-not for sale . He pointed out that Commissioner has solely relied on the fact that the purchase order of the institutional buyers did not mention that the goods are not intended for resale or for the free distribution. The impugned order also relies on the fact that such orders of institutional buyers have been obtained through dealers/ distributors. 2.1 During investigation it was found that the primary packing of the supplies intended sale to institutional buyers contained marketing such as railway supplies , BHEL supplies etc. It was also found that the MRP was not printed in respect of supplies meant for institutional buyers. 2.2 Ld. Counsel further pointed out that they were not required to print the MRP on the supplies mad .....

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..... ntral Government hereby specifies the goods mentioned in column (3) of the Table below and falling under Chapter or Heading No. or Sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) mentioned in the corresponding entry in column (2) of the said Table, as the goods to which the provisions of the said sub-section (2) shall apply, and allows as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table :- TABLE S. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price (1) (2) (3) (4) 1. 3003. 10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic 35% .....

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..... n the label of container of the formulation and the minimum pack thereof offered for retail sale , the retail price of that formulation with the words retail price not to exceed preceding it local taxes extra succeeding it, and the words Not under Price Control on a green strip: Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the prorata retail price of the main pack rounded off to the nearest paisa. A perusal of the aforesaid provisions shows that the requirement of printing the MRP is in respect of products offered for retail sale . Therefore, if the product is not offerred for retail sale, the said provision of Rule 14 15 will not apply. In the present facts and circumstances, we need to examine whether if the provisions of Rule 14 or 15 could be attracted. 4.1 It is seen that investigations were extended to various customers/ dealers and in para 9 of the impugned order the list of customers has been enumerated. The gist of the investigation is reproduced in .....

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..... n (ii) On the minimum pack thereof offered for retail sale. 4.3.4.1.5. What will be displayed thereon? : (i) retail price not to exceed local taxes extra applicable for scheduled formations (ii) maximum retail price (MRP) inclusive of all taxes in respect of non-scheduled formulations. 4.3.4.2. As discussed at para 4.3.4.1.1-4.3.4.1.5 hereinabove I come to the conclusion that as and when a manufacturer or distributor or importer of scheduled or non-scheduled formulations intends to sell the said formulations, he shall display, in indelible print mark, on the label of the container of the formation as well as on the minimum pack thereof offered for retail sale, the retail price or maximum retail price thereof. The argument in the impugned order being that the goods intended for ultimate sale to institutional buyers, are first sold to dealer/ distributors. Thus, when they are sold to dealers/ distributors the provision of DPCO 1995 get attracted. It is seen that the DPCO 1995 mandates, printing of retail sale price on containers as well as on minimum pack thereof offered for retail sale . From above it is apparent that .....

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