TMI Blog2020 (7) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... nary items from the retail outlets - Since, the notified goods in this case were not sold in packaged form or condition to the ultimate buyers, there was no statutory requirement on the part of the appellant to declare the retail sale price of loose chocolates for determination of the value as per Section 4A of the Act. The CBEC vide Circular dated 28.02.2002 has clarified that if there is no statutory obligation under the provisions of SWM Rules to declare the retail sale price of the packages, then the provisions of Section 4A would not be applicable. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 92 & 93 of 2011 - A/85603-85604/2020 - Dated:- 17-7-2020 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Sudhir K. Mehta and Shri Hasmukh Kundalia, Advocates for the Appellants Ms. Trupti Chavan, Authorised Representative for Revenue ORDER These appeals are directed against the impugned order dated 19.11.2020 passed by the Commissioner of Customs (Import), Nhava Sheva, wherein Additional Duty of Customs (CVD) amounting of ₹ 15,70,478/- was confirmed alongwith interest; equal amount of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. 3. The learned Advocate appearing for the appellants submitted that the goods in question were never sold to the ultimate buyers in packaged form and thus, the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 would not be applicable for determination of value under Section 4A of the Central Excise Act, 1944. He has relied upon the Circular No. 625/16/2002- CX., dated 28.02.2002 issued by the CBEC to state that since the retail sell of confectionary items was effected to the ultimate consumers in loose form, the appellant was not under any statutory obligation to observe the procedures or comply with the requirement of the aforesaid Rules, 1977 and in such cases, the valuation was required to be done under Section 4 of the Act and the provisions of Section 4A cannot be resorted to for that purpose. The learned Advocate has relied upon the judgment of Hon'ble Supreme Court in the case of Jayanti Food Processing (P) Ltd Vs CCEX, Rajasthan [2007 (215) ELT 327 (S.C.)] and of this Tribunal in the case of Swan Sweets Pvt Ltd. Vs CCE, Rajkot [2006 (198) ELT 565 (Tri.-Mumbai)], to justify the above stand. 4. On the other hand, the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of weight only. The appellant used to circulate the price list for retail sale for its outlets, which were made of the quantity like 10 gm, 20 gm, 50 gm of mixed candies. The imported goods were packed in cartons only for transportation purpose and not otherwise. The statements of various persons referred to in the impugned order have also endorsed such means and methods adopted for sale of confectionary items from the retail outlets. Since, the notified goods in this case were not sold in packaged form or condition to the ultimate buyers, there was no statutory requirement on the part of the appellant to declare the retail sale price of loose chocolates for determination of the value as per Section 4A of the Act. In this context, the CBEC vide Circular dated 28.02.2002 has clarified that if there is no statutory obligation under the provisions of SWM Rules to declare the retail sale price of the packages, then the provisions of Section 4A would not be applicable. 9. The issue arising out of the present dispute with regard to determination of the value under Section 4A of the Act has been dealt with by the Hon'ble Apex Court in the case of Jayanti Food Processing Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the requirement under the SWM Act or the Rules made thereunder or any other law to declare the MRP on the package. If there is no such requirement under the Act and the Rules, there would be no question of application of Section 4A. Thus if the appellant is successful in showing that there is no requirement under the SWM Act or the Rules made thereunder for declaration of MRP on the package, then there would be no question of applicability of Section 4A(1) (2) of the Act. Even if the assessee voluntarily displays on the pack the MRP, that would be of no use if otherwise there is no requirement under the SWM Act and the Rules made thereunder to declare such a price. 13 . Learned Counsel for appellant took us through the rules extensively which rules we have already quoted above. The thrust of the argument was that firstly the assessee could not be said to be a retail dealer as contemplated in Rule 2(o) of the SWM (PC) Rules nor could the package be described as retail package to be covered under Rule 2(p). Learned Counsel firstly suggested that the assessee was not directly selling the package to the consumer, he was in fact supplying the package to the intermedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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