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TMI Blog2023 (10) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... ing manufactured by the appellant, the individual piece weighing less than 10 grams per piece and the same are packed in 500 grams pack whether such product is liable to be valued on MRP basis under Section 4A or under Section 4 of Central Excise Act, 1944. 2. Shri Dhaval Shah, Learned Counsel appearing on behalf of the appellant submits that this issue in the appellant own case has been settled in their favour by the Hon'ble Supreme Court reported at 2010 (259) ELT 5 (SC). He further submits that the said judgment was relied upon by this Tribunal in the case of Makson Pharmaceuticals India Pvt. Ltd vide Final Order No. A/ 11102 -11103/2023 dated 03.05.2023 and held that valuation of such goods is governed by Section 4 and not under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case also. The relevant order of the Hon'ble Supreme Court in the appellant's own case is reproduced below:- 2. In view of the order of this Court dated 15th September, 2008, dismissing CA. No. 7559 of 2008 (D.19192/2008) [2008 (232) E.L.T. A107 (S.C.)], preferred by the Revenue against the order 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), the issue raised in the appeals is no more res integra. In the said order, the Tribunal relying on its earlier decision in the case of M/s. Swan Sweets Pvt. Ltd. [2006 (198) E.L.T. 565 (Tribunal)], one of the respondents in the present appeals had held that a package containing about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4A but since the differential duty demand i.e. between Section 4 and Section 4A was not sustained, the same was held to have been collected by the assessee from their customer accordingly, the demand was confirmed under Section 11D. On the submission of the appellant and on the perusal of record, it is clear that the assessee though raised invoices showing duty under Section 4A but in respect of the differential duty they have issued credit note to their customers and consequently the said amount was not collected. In this regard, for ease of reference we reproduce provision of Section 11D as under:- SECTION [11D. Duties of excise collected from the buyer to be deposited with the Central Government. - (1) Notwithstanding anything to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and 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 subsection (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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