TMI Blog2008 (8) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... avan, Advocate, for the Appellant. Shri M.M. Singh, DR, for the Respondent. [Order per: M. Veeraiyan, Member (T) ]. - This is an appeal against the order of the Commissioner (Appeals) No. CEX-XI/JMJ/351/916/APL/2004 dated 1-9-2004. 2. Heard both sides. 3. The relevant facts, in brief, are as follows:- (a) The applicant is a manufacturer of "Aquafresh Toothpaste" which they manufacture on job work basis and supply the goods M/s. Glaxo Smithkline Asia Pvt. Ltd. The goods so manufactured on job work basis was being generally sold by M/s. Glaxo Smithkline Asia Pvt. Ltd. In respect of such toothpaste, MRP is printed on the boxes; they are cleared by the appellant on payment of duty applying valuation under Section 4A. (b) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) which stands reversed by the Hon'ble Supreme Court in the above cited decision. Relevant portion of the decision in the case of Jayanti Foods (supra) overruling the decision in the case of Nestle India Ltd. is reproduced below:- "27. The Tribunal in para 8 of its judgment has observed: "Once the goods are specified items under Section 4A(1) and are excisable goods chargeable duty (sic) with reference value, then such value shall be deemed to be the retail sale price declared on such goods, less amounts of abatements etc. As we have already observed that Weights Measures Act requires chocolate manufactured by the appellant to be printed with MRP on the same, we are of the view that the duty of excise on such goods is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o distribution and would, therefore, be amounting to "'retail sale" and the package of KITKAT would be "retail package". However, what is material is the definition of "retail sale price". The requirement of Rule 6(1)(f) is specific. It requires the retail sale price of the package be printed or displayed on the package. If there is no sale involved of the package, there would be no question of Rule 6(1)(f) being attracted. There is a clear indication in the definition of "retail sale price" as provided in Rule 2(r) which clearly explains that the MRP means the maximum price at which the commodity in packaged form may be sold" to the ultimate consumer. Thus, the definition of "sale" in Section 2(v) of the SWM Act becomes relevant. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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