TMI Blog2024 (2) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... le in terms of explanation to the Rules. There is nothing contrary on record to prove that these goods were not meant for institutional buyers or there was any resale by such buyers. Therefore, the goods would be covered under the exemption. Similarly, for packet sizes of less than 10gm also Sec 4A would not be applicable. For small packets cleared in bulk, in a packed condition, the Appellants have relied on the judgment of COMMISSIONER OF CENTRAL EXCISE, RAJKOT VERSUS M/S MAKSON CONFECTIONERY PVT. LTD. [ 2010 (9) TMI 10 - SUPREME COURT] , whereby the Hon ble Supreme Court upheld the decision of the Tribunal holding that a package containing about 100 or more individual pieces of an article like clairs brand chocolate, each weighing 5.5gm, would qualify for exemption under Rule 34 of Standards of Weights Measures (Packaged Commodities) Rules. Therefore, relying on this ratio, even if the instant coffee of pouches less than 10gm were cleared in bulk and not meant for retail sale, it would be exempted under Rule 34 and therefore, will not attract Sec 4A of Central Excise Act 1944. Time Limitation - no intent to evade - HELD THAT:- The element of intention to evade is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed in respect of the said goods under sub-sec (2) of Sec 4A of the CEA, 1944 in terms of the proviso to Sec 3(2) of the CTA 1975. 3. Further, in terms of S.No.3 of Notification No. 23/2003-CE dt.01.03.2003, when excisable goods are cleared by a company into DTA, in accordance with provisions of Export and Import Policy and subject to fulfillment of conditions in the notification, such clearances of goods are exempted from so much of the duty of excise leviable thereon under Sec 3 of the CEA, as in excess of amount equal to aggregate of duties of excise leviable under Sec 3 of CEA or under any other law for the time being in force on like goods produced or manufactured in India other than in an export oriented undertaking. 4. Therefore, the department, relying on the provisions of Sec 4A for the purpose of valuation for charging central excise duty, issued SCN demanding differential central excise duty of Rs.71,48,227/- and also by invoking extended period of limitation as per proviso to Sec 11A(1) of the CEA 1944 and also proposed for levy of penalty under Sec 11AC. On adjudication, the Original Authority examined the submissions made by the Appellant and the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee can be extended to them. b) Similarly, in respect of clearances claimed to have been made to institutional consumers, on verification it is seen that majority of the clearances are through C F agents and there were direct sales to Indian Airlines only in few cases. As per Explanation (a) to Rule 2A of Standards of Weights Measures (Packaged Commodities) Rules, Institutional Consumer means those consumers who buy packaged commodities directly from the manufacturers/packers and not to the C F agent who supply the goods to the service industry. Hence, the exemption from application of provisions of Sec 4A of the Act needs to be restricted only to the sales made directly to Indian Airlines. c) In respect of trade samples and allowance coffee for the employees, there is neither any provision in the statute for exemption from the operation of Standards of Weights Measures (Packaged Commodities) Rules 1977/ Sec 4A of the Act nor the Assessee cited any provisions in support of their contention. d) Valuation under Sec 4A of the Act will be applicable even to containers containing 23kg. However, they have failed to adduce any evidence that they cleared the goods wei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically, they have provided explanation on invoice to invoice basis. In Annexure-I, the invoices have been raised to 20 different parties under 4 types of transactions, which has been further detailed in Annexure-II. They have also explained, the abbreviations used in Annexure-I II to explain the transactions, which are as follows: a) If the transaction is sale to the parties for resale, the same is marked as MRP (RS) . b) If the transaction is sale to institutions for consumption, the same is identified as INST Sale . c) If the package on sale does not attract Standards of Weights Measures Act, then it is noted as S.4A-NA to indicate that Sec 4A does not apply to such transaction. d) In cases where there is no obligation for marking MRP as per the Standards of Weights Measures Act, but still the MRP is marked, the said transaction is identified as MRP (RS) S.4A-NA . This is to show that even while MRP is marked Sec 4A does not apply to such cases. 10. They have admitted that in certain cases, Sec 4A would be applicable correctly and they have on their own calculated the differential duty liability and also paid the same for the normal period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued inadvertently and therefore, there was no intent to evade. They have also relied on the fact that ER1 returns were filed regularly and copies of all invoices till October 2008 were being enclosed along with ER2 returns till the time the Appellants were asked not to submit invoices with ER2 returns. Therefore, basically, when the department was aware of the Appellant s clearances, there could not have been any intention on their part to suppress any fact with intent to evade duty. 12. From the submissions made and the facts discussed in the OIO, as also urged at the hearing, it is obvious that this is a case where depending on the nature of packet size, the applicability of Sec 4A would have to be determined. If the sale is to the institution directly, Sec 4A would not be applicable. However, when the sale is through C F agent, the question is whether it could be covered within the ambit of Sec 4A or otherwise. From the submissions made, it is obvious that C F agents were only acting as freight and forwarder and the goods were all along meant for institutional buyers only. Therefore, this transaction could be considered in the nature of institutional sale in terms of explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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