TMI Blog2020 (3) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... r having done so, revenue has proposed to determine the value of whole sale pack by applying the provisions of Section 4A in respect of the Bubble Gums cleared by the appellant and the value of remaining Solano Toffees by treating them as free samples by application of Section 4 of the Central Excise Act, 1944 - We are not in agreement with such approach as by doing so revenue has proposed to disintegrate the wholesale package and determine the value of individual components under separate provisions of the same act. Section 4A is not applicable to the whole sale pack in the form in which the jar containing 150 Bubble Gums and 20 Solano Toffees was cleared the value of entire jar was to be determined by application of Section 4 as it exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tariff Act, 1985. 2.2 During course of Audit, it was noticed that they were packing and clearing their finished products in following manner on payment of duty as applicable after determination of the value as per Section 4A of the Central Excise Act, 1944: The Bubble Gums are cleared in a jr containing 150 Bubble Gums; Each Bubble Gum is marked with the Maximum Retail Price of Re. 1.00 and the jar also bear the MRP of ₹ 150/- which is equivalent to aggregate of MRP of ₹ 150 Bubble Gums contained in the jar. In addition to 150 Bubble Gums these jars also contained 20 Solano Toffees packed in a poly bag kept in the jar. No MRP is declared on the Solano Toffees. The packing label on the jar also contains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phrase Wholesale Pack has been inscribed on the jar. The adjudicating authority has himself in para 4.5.3 observed Thus the pet jars weighing 675 gm (150 Bubble Gums) plus 60 gms (20 Solano toffee) is neither a Multi-piece package nor a retail sale packages as they are not purchased by retail customers/ ultimate consumers. In the present case, the noticee have themselves mentioned/ printed the words whole sale pack on the jar . After concluding that the pack was not a retail pack, adjudicating authority could not have proceeded to determine the value of the jar as per Section 4A of the Central Excise Act, 1944. The reliance placed by the adjudicating authority on the decision in case of Cocoa Marketing and Processing Co-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined under Section 4 in the manner as explained in para 6, 7, 8, 9 10 of the Show Cause Notice by application of Rule 4 and 11 of Central Excise Valuation Rules, 2000. This manner of valuation as per the Board Circular No 813/2005 dated 25.04.2005 and the decisions as follows: Indian Drugs Manufacturer s Association [2008 (222) ELT 22 (Bom)] Cadila Pharmaceuticals Ltd [2008 (232) ELT 245 (T-LB)] By application of the above the Show Cause Notice has determined the assessable value of 222233360 pieces of Solano Toffees supplied free in the jars of Bubble Gum as ₹ 7,22,25,842/- after allowing the abatement of 35% on the MRP of Solano Toffees cleared as such. The extended period of limitation has been propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that the learned Commissioner (A) has categorically stated that in our Final Order No. 1774/2005 dated 7-10-2005 [2006 (195) E.L.T. 109 (Tribunal)], on the same issue and in respect of the same respondent for the earlier period, we allowed the appeal of the respondent and held that the process of combining anti-dandruff shampoo and the face wash gel would amount to manufacture as per Chapter Note 5 to Chapter 33. Since it is undisputed that the face wash gel is supplied free by the respondent and the product anti-dandruff shampoo is covered under Section 4A of the Central Excise Act, the provisions of Standards of Weights and Measures Act will be applicable and there will not be any duty liability on the face wash gel which is supplied fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be determined by application of Section 4 as it existed at that time. Revenue has in the show cause proposed not to determine the value of the whole sale pack but only a component of the said pack under Section 4. In our view Section 4 should have been applied to the entire pack in the form in which it is cleared, and liability to duty determined. This view is in accordance with the decision of the Apex Court in case of Makson Confectionary [2010 (259) ELT 5 (SC)]. Since there is no proposal either in the show cause notice to determine the value of jar under Section 4 of the Central Excise Act, 1944 we are not in position to determine the same as of now. 5.4 In view of discussions as above since the show cause notice or the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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