TMI Blog2004 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act as claimed by Revenue and whether the assessable value of the goods supplied to Hotels will be determined under Section 4A of the Central Excise Act as confirmed by the Commissioner (Appeals). 2. We heard Shri V. Valte, learned SDR, for the Revenue and Shri V.P Goyal, learned Advocate, for the Respondents. Both learned SDR and learned Advocate agree that the classification issue has been decided by the Appellate Tribunal in the Respondents own case vide Final Order Nos. 381-396/2000-C, dated 28-8-2000 [2001 (137) E.L.T. 293 (T)] which has only been followed by the Commissioner (Appeals). Revenue has preferred the appeal against the said Final Order of the Tribunal classifying their 21 items as Ayurvedic Medicaments b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b. (P) Ltd., Final Order No. 168/2002-A, dated 19-4-2002 [2002 (144) E.L.T. 204 (T)] wherein the Tribunal has held that goods packed under a special contract for the hotel industry are not required to bear the "maximum retail price" declaration on the retail package. Under such circumstances it is clear that the goods fall outside the purview of Section 4A. They are, therefore, required to be assessed in terms of the valuation provided for in Section 4. The learned SDR also mentioned that the Board vide Circular No. 411/44/98-CX., dated 31-7-98 has clarified that sub-section (1) of Section 4A applies only when the MRP is required to be indicated under the provisions of Standards of Weights Measures Act, 1976 or under any other law; that " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act provides that Section 4A(2) would apply to such goods, as are specified by the Central Government by Notification, which are required, as per the Standards of Weights Measures Act or Rules made there- under, to be sold under packages with the retail sale price declared thereon. Section 4A(2) provides that in respect of goods notified under sub-section (1), the assessable value would be the retail sale price less abatement to such extent as is notified by the Central Government in respect of such goods; that the Central Government has issued Notification No. 18/97-C.E. (N.T.), dated 19-6-97 specifying goods falling under Heading Nos. 33.03, 33.04, 33.05 and 33.07 of Central Excise Tariff as the goods to which provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in retail or wholesale or on contractual price; that all these considerations are irrelevant once the MRP is affixed on the products. 5.1 The learned Advocate mentioned that provisions of Rule 34(1)(a) of Packaged Commodities Rules, 1977 becomes applicable only if the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry or for the purpose of servicing any industry; that this specification does not stand satisfied in the case of the labels affixed by the Appellants, that the decision in the case of Trishul Research Lab. (P) Ltd. is not applicable to the facts of present matter as the facts are different inasmuch as that in the present matters the retail sale price is affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e force of a statute. In such circumstances it can be said that the matter was decided per incuriam. He also mentioned that in Bharti Systel Ltd. the question was whether the demand raised contrary to the Circular of the Board was sustainable and the Tribunal following the settled legal principle has held that the Circulars are binding on Revenue. 6. We have considered the submissions of both the sides. It is an admitted fact that the goods in question have been specified by the Central Government under sub-section (1) of Section 4A of the Central Excise Act and as such these goods are such goods in relation to which provisions of Standards of Weights Measures Act apply. As per Rule 6 of the Standards of Weights Measures (Packaged Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the instrumentality of hotels. The provisions of Section 34 of the Packaged Commodities Rules, 1977 are not applicable to the impugned goods as no material has been adduced by Revenue to show that "the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry." The Commissioner (Appeals) has given a specific finding in the impugned Order-in-Appeal Nos. 759-767/2001 that "the goods in question are not used as raw material. It has been submitted that the goods supplied by the appellants to the hotels are in turn distributed to the customers and thus these goods are not supplied for servicing the hotel industry." The l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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