2010 (12) TMI 266 - AT - Central Excise

Tribunal overturns orders, remands case for analysis on retail vs. wholesale supply.

The Tribunal allowed the appeal, setting aside the lower authorities' orders and remanding the case for fresh consideration. It emphasized the need for a ... Valuation - electric fans - Transaction Value u/s 4 or MRP bases value u/s 4A - whole sale versus bulk supply - The dispute in the matter is whether the electric fans supplied by the appellants to the various department of the Government during the period from March 2002 to October 2003 at the rate agreed upon between the appellants and DGS&D to be assessed under Section 4 or 4A of the said Act - Plain reading of the above reading of the Apex Court in Jayanti Food Processing (P) Ltd. (2007 - TMI - 1560 - Supreme Court) would disclose that in order to take resort to Section 4A for the purpose of valuation of the goods and assessment of duty all the five factors narrated therein must be present.In the present case, undoubtedly it was sought to be alleged against the appellants that there was bulk supply of the goods and, therefore, the provisions of chapter 2 of the said rules would not apply. The expression bulk supply is nowhere defined either in the said Act or in the said Rules. It is, however, commonly understood that whenever it is bulk supply it refers to wholesale supply. But before arriving at any finding about the wholesale supply or bulk supply in a case where a dispute is raised that the nature of supply does not disclose to be the bulk supply, but it is a retail supply, it is always necessary for the Adjudicating Authority to analyse the materials placed on record in that regard by both the parties and to arrive at a appropriate finding as to whether the nature of supply discloses to be of wholesale nature or retail one - matter remanded back. Issues Involved:1. Whether the electric fans supplied by the appellants to various government departments should be assessed under Section 4 or Section 4A of the Central Excise Act, 1944.2. Whether the supply of electric fans constitutes retail sale or wholesale sale (bulk sale).Issue-wise Detailed Analysis:1. Assessment under Section 4 or Section 4A of the Central Excise Act, 1944:The primary contention revolves around whether the electric fans supplied by the appellants should be assessed under Section 4 or Section 4A of the Central Excise Act, 1944. The Assistant Commissioner, Kolkata, and the Commissioner (Appeals), Kolkata, held that the assessment should be under Section 4, confirming the demand for differential duties and penalties. The appellants argued that the supply was on a retail basis, invoking Section 4A, which pertains to goods sold in packaged form with a declared retail sale price (MRP).The appellants relied on the decision in Jayanti Food Processing (P) Ltd. vs. CCE, Rajasthan, where the Supreme Court held that the nature of sale (wholesale or retail) is not relevant for the applicability of Section 4A. Instead, five factors must be present: (i) the goods should be excisable, (ii) sold in a package, (iii) required to declare the retail price under the SWM Act or other laws, (iv) specified by the Central Government by notification, and (v) the valuation should be based on the retail sale price less abatement.2. Nature of Sale - Retail or Wholesale (Bulk Sale):The appellants supplied electric fans to government departments under a rate contract with DGS&D, contending this constituted retail sale. They argued that the requirement to print MRP on packages, as mandated by the Standards of Weights and Measures Act, 1976, necessitated assessment under Section 4A. The Department Representative (DR) countered that the supply was wholesale, given it was for a fixed period at agreed rates, thus falling under Section 4.The Tribunal referred to the Supreme Court's ruling in Jayanti Food Processing (P) Ltd., emphasizing that the nature of sale (retail or wholesale) is irrelevant for Section 4A's applicability. The Tribunal noted that the definition of retail sale, retail package, and retail sale price under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, supports the appellants' claim of retail sale. The Tribunal also considered Rule 34, which exempts certain packages from the rules, but found no specific provision defining bulk supply.Conclusion and Remand:The Tribunal concluded that the Adjudicating Authority and the lower Appellate Authority failed to adequately analyze whether the supply was retail or wholesale. The Tribunal emphasized the necessity of a detailed examination of the nature of supply, considering the provisions of the SWM Act and relevant case law. Consequently, the Tribunal set aside the orders of the lower authorities and remanded the matter for fresh consideration, instructing the Adjudicating Authority to apply the relevant legal provisions and consider all cited decisions.Final Order:The appeal is allowed, the impugned orders are set aside, and the matter is remanded for fresh consideration in accordance with the law, taking into account the observations and legal provisions discussed.