TMI Blog2004 (7) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and 3 such sachets are put in a carton. Net weight of the product in each carton is 9 gms. (b) The issue involved whether the product as above and taken out in this manner cleared on payment of duty by the appellant are required to duty levied on value as per Section 4 or Section 4A of the Central Excise Act on MRP (Maximum Retail Price declared on Package.) (c) The relevant notification applicable in this two case have the period July 2001 to December 2002 are Notification No. 5/2001-C.E. (N.T.), dated 1-3-2001 and Notification No. 13/2002-C.E. (N.T.), dated 1-3-2002, which have been issued and bring goods falling under Chapter 32.05 of the Central Excise Schedule in the ambit of Section 4A(2) of the Central Excise Act, 1944. Rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Measures Act, the Appellants' products cannot be assessed under Section 4A, but is required to be assessed under Section 4 of the Act. A copy of the relevant provisions of the SOW M(PC) Rules." 3. The reading of Circular No. 341/64/97-TRU, dated 11th August 1997, indicates, that Section 4A applies only when there is a statutory requirement of affixing/declaring MRP. When such manufacturers voluntarily affixed MRP, they shall not be charged the duty on the basis of Section 4A of the Act and notification. While Letter No. 103/1/97-CX. 3, dated 30th April, 1998 from the Board to the Chief Commissioner of Central Excise, Vadodara indicates that sachets of 8 ml shampoo is not exempted under Rule 34(1)(b) of the Standards of Weights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual piece of the commodity contained in such packages. However, under Rule 34 exemption in respect of certain packages have been provided. In particular sub-rule (b) to Rule 34 provides that the MRP provision for not apply to a package containing a commodity if the net weight or measure of a commodity is 10 grams or 10 ml or less, if sold by weight or measure. Some manufacturers have claimed that the multi-piece package containing individual pieces of less than 10 grams or 10 ml or less, even though the net quantity of such multi-piece package exceeds 10 grams or 10 ml would be covered by the above exemption. Hence they would not required to be assessed to excise duty on the MRP prices under Section 4A of Central Excise Act, 1944. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 is to be constructed to cover only the type of multi-piece packages regarding which the query was made by some manufacturers. Obviously if the net content of the multi-piece package is in excess of 10 gms or 10 ml, exemption from declaration of MRP under Rule 34(b) is not applicable to such packages. It is further submitted that if the circular is so read, then the packages of the type involved in the present appeals i.e. multi-piece package containing less than 10 gms 10 ml will be eligible for exemption under Rule 34(b). If it is the contention of the Department that clarification in Para 3 applies to all multi-piece packages irrespective of the net content of the commodity being less than 10 gms or 10 ml or more than 10 gms or 10 ml, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2002 to this extent, that if one of the two prices declared on the package is scored out then such scored out MRP should be ignored. From the circulars issued time to time it is apparent that the view has consistent been that if a manufacturer is not legally required to be declare the MRP on a package, then the provisions of Section 4A of the Central Excise Act will not be applicable for …… Of assessment of duty on such packages. Rule 34(b) of the Rules under Standards of Weights and Measures Act is very clear and unambiguous. The sub-rule (b) thereof, provides that the provisions of the Packaged Commodities Rules will not be applicable where the net weight or measure of the commodity contained therein, is 20 gm or 20 ml or less. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find no reason to arrive at a contrary decision. It is therefore held that the package herein is not liable for assessment to duty under Section 4A of the Central Excise Act, 1944. 7. In view of the fact that duty has been paid under Section 4 and no duty further were required to be paid under Section 4A of the Central Excise Act. We do not find any reason to call for the demands and other consequences. Order impugned are therefore required to be set aside. 8. When it is found that the above issue was raised from time to time and the issues were not clear to the officers and the assessee and Board had also changed the views, we find the plea of limitation raised by ld. Advocate is to be upheld. 9. In view of the above the orders a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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