TMI Blog2023 (8) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be valued under Section 4 and not 4A for the reason that the each pouch is considered as retail pack and not a packet of 50 pouches. Therefore, the value should not be governed under Section 4A whereas the same should be governed under Section 4. The very same issue of chewing tobacco was considered by this Tribunal in the case of M/S ARORA PRODUCT VERSUS CCE, JAIPUR-II [ 2011 (8) TMI 928 - CESTAT, DELHI ] wherein the Tribunal held that both the legal requirements for applying section 4A were satisfied and hence Central Excise duty should have been paid adopting the value as per section 4A. The issue is no longer res-integra. Accordingly, the impugned order passed by learned Commissioner (Appeals) bears no infirmity and the same is upheld. Revenue s appeal is dismissed. - HON BLE MR. RAMESH NAIR, MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR, MEMBER ( TECHNICAL ) Shri Tara Prakash, Deputy Commissioner ( AR ) for the Appellant Shri Abhishek M. Mehta, Advocate for the Respondent ORDER RAMESH NAIR : This appeal is directed against Order-in-Original No. 10-18-DEM-CEX-COMMR-I-BRC-I-2012 dated 30.11.2012 whereby learned Commissioner (Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same should be governed under Section 4. The very same issue of chewing tobacco was considered by this Tribunal in the case of Arora Product (supra) wherein the Tribunal passed the following order:- The appellants are engaged in the manufacture of Chewing Tobacco falling under Sub-heading No. 2404.41 of the First Schedule to the Central Excise Tariff Act, 1985. 2. The officers of the Anti-Evasion Wing of Central Excise Commissionerate, Jaipur-II visited their factory premises by surprise on 29-9-2004 and conducted various checks and found that they manufacture four different types of packages and on the following details were inter alia printed on the pouches and the packages. 1. 12 Grms Pouch of NATRAJ Zarda with Chuna Weight MRP MRP of Multi Piece Package 12 grams Rs. 2/- per pouch Rs. 50/- of 25 pouches 2. 6 Grms Pouch of NATRAJ Zarda with Chuna Weight M.R.P. MRP of Multi Piece Package 6 grams Rs. 1/- per pouch Rs. 30/- of 32 pouches 3. 3 Grms Pouch of NATRAJ Zarda with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dities) Rules, 1977 to affix MRP on multi-piece package. If they were required under the law to do so and since the item was notified under Section 4A of the Central Excise Act, assessable value was required to be determined as per the provisions of the said Section 4A and central excise duty was to be paid accordingly. 7. If the Appellant s contention is correct they were not required under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 to affix MRP on multi-piece package. If they were not required under law to do so, even if they had affixed MRP on the multi-piece packages the provisions of Section 4A would not apply even if it is a product notified under Section 4A and consequently provisions of Section 4 of Central Excise Act were to apply to such goods like any other case and the Appellants had paid duty accordingly from 8-3-2004. This legal position stands clarified under Circular No. 411/44/98-CX dated 31-7-1998 issued by C.B.E. C. and a few decisions of the Tribunal and Higher Courts. 8. The adjudicating officer considered the submissions and gave his findings as under : A similar question arose before the Hon ble High Court, Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il consumer. The sale has to be through a network of distributors and dealers and retails who will ultimately sell the goods to the ultimate consumer. If the appellants contention in this respect is accepted, there would be no way in which assessments under the MRP scheme could be administered. Coming to the point of multi-piece packing, I find it necessary to reproduce the definition of multi piece package as under :- multi piece package means a package containing two or more individual packaged or labeled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole . The definition says intended for retail sale either in individual pieces or the package as whole. That means there should be an intention of selling either the package as a whole or as individual pieces, in retail. The condition in which the goods are actually sold is not a pre-requisite for qualifying the definition. I find that the appellants are clearing the packages of smaller pouches in a larger pouch and the individual pieces are meant for retail sale by the retailers. This is a fact which is also not in dispute. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire the manufacturers to intimate and declare to the jurisdictional Assistant Commissioner of Central Excise as regards the packings on which MRP is not required to be affixed statutorily may be asked to indicate full description including weight, etc. of such packings. It may be examined and ensured by the Assistant Commissioner that the packings are such that they are exempt under the provisions of the Standards Weights and Measures Act and the rules made thereunder. Such packings will be assessed to excise duty under the provisions of Section 4 of Central Excise Act, 1944. 4. The matter has been re-examined and it has been decided to reiterate the above instruction contained in Board s Letter F. No. 341/64/97-TRU, dated 11th August, 1997. Accordingly, the instructions dated 30-4-1998 regarding Shampoo sachets communicated to Chief Commissioner, Vadodara and some assessees may be treated to have been withdrawn. Such cases may also be decided in accordance with the instructions contained in this Circular. 5. All pending disputes/assessments on the issue may be settled in the light of these guidelines. 6. Field formations and trade may be advised suitably. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion appended thereto brings out the true meaning and purport thereof. The reasoning adopted by the Madras High Court in Varnica Herbs (supra) does not appeal to us. It was rendered per incuriam. It was held to be so in Urison Cosmetics Ltd. (supra) by a Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal. We agree with the said opinion of the Tribunal. 16. The argument that goods are sold by numbers can be raised in respect of commodities like cakes of toilet soap, or tins of talcum powder. But any customer would see the weight of the soap cake or the weight of the contents in a tin of talcum powder before being satisfied about the price for the item. So the argument that such commodities are sold by number is not an acceptable argument. Moreover the Apex Court has specifically overruled the decision of the Madras High Court as explained above. So there is no merit in the argument that the commodity is not sold by weight. 17. In the case of C.C.E. v. Kraftech Products Inc. - 2005 (179) E.L.T. 43 (Tri.-Mum), cachets of hair dye containing 3 grms each was packed into multi-piece package of 3 such units and in this case also the weight of the multi-piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for retail sale or not will depend on the persons who organize the distribution and sale of the product and on none else. 20. Thus the labels on the jar clearly indicated that the jar was not intended for retail sale. That is not the situation in the present case. In the present case MRP is indicated for the multi-piece package was indicated on the multi-piece package showing the clear intention that such multi-piece package also was intended for retail sale. 21. Retail sale has been defined under Rule 2(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. This definition reads as under : (q) retail sale , in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities or consumption by an individual or a group of individuals or any other consumer . 22. The declaration to be made on every package is prescribed in Rule 6 of the said Rules reads as under :- 6. Declaration to be made on every package (1) Every package shall bear thereon or on a label securely affixed thereto a definite, plain and conspicuous declaration, made in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguished. In this regard, we reproduce Rule 34 (b) which has prevailed prior to 13.01.2007 and subsequent to that which reads as under:- Before 13.01.2007 Rule 34. Exemption in respect of certain packages Nothing contained in these rules shall apply to any package containing a commodity if,- (a) . (b) the net weight or measure of the commodity is twenty grams or twenty mililitres or less, if sold by weight or measure. After 13.01.2007 Rule 34. Exemption in respect of certain packages Nothing contained in these rules shall apply to any package containing a commodity if,- (a) . (b) the net weight or measure of the commodity is ten gram or ten mililitre or less, if sold by weight or measure. In view of the above rule, which was prevailing throughout the period involved in the present case, there is a clear provision that in case of the product of less than 10 grams, there is no requirement for affixing retail sale price. Since in the earlier decision of the Hon ble Supreme Court it was categorically held that for the purpose of assessment, individual confectionary has to be taken and not the wholesale pack. The individual confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Act, 1944. 3. In view of the said decision, with which we are in respectful agreement, there is no merit in these appeals, which are dismissed accordingly, with no order as to costs. Civil Appeal No. 1290/2007 4. In view of the decision of this Court in Civil Appeal No. 7559 of 2008 (D.19192 of 2008), affirming the decision of the Tribunal in the case of Central Arecanut Cocoa Marketing Processing Co-Op. Ltd. v. C.C.E., Mangalore, 2008 (226) E.L.T. 369 (Tri.-Chennai), this appeal is dismissed. Civil Appeal No. 5856/2006 5. Having regard to the fact that the revenue involved in the case is stated to be less than Rs. 15,000/-, we decline to entertain the appeal. The same is dismissed accordingly, keeping open the question of law sought to be raised in the appeal. In view of the above order of the Hon ble Supreme Court, the issue is no more res-integra accordingly, the revenue s appeal is liable to be dismissed. 5.3 As regard the assessee s appeal, wherein they have challenged the confirmation of demand by the adjudicating authority under Section 11D, we find that though the appellant have raised invoice showing the total excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under [sub-section (1) or sub-section (1A) or sub-section (3), as the case may be,] shall be adjusted against the duty of excise payable by the person on finalization of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in [subsection (1) and sub-section (1A)]. (5) Where any surplus is left after the adjustment under sub-section (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount.] From the plain reading of the above Section 11D, it is clear that the provision of section 11D shall apply only in case where the assessee collects the duty and does not deposit to the government. In the present case, though the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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