TaxTMI 
TaxTMI 
2006 (6) TMI 236
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....iff heading 1804.00. These goods are notified both under Section 4A of the Central Excise Act, 1944 and the Standards of Weights and Measures Act, 1976. The appellants are of the view that there is no requirement of affixing MRP in terms of Rule 34(b) of the Standards of Weights & Measures (Packaged Commodities) Rule 1977 [SWM (PC) Rules in short] as the unit net weight of the product is approximately 5.5 gms. Moreover, they claimed that their product is packed in wholesale package and meant for wholesale dealers as per Rule 29 of the SWM (PC) Rules. Hence, they are not required to affix the MRP on the said packages in view of the clarification given by the Central Board of Excise & Customs vide their Circular No. 625/16/2002-CX dated 28-2-2002 and letter No. F.341/64/97-TRU dated 11-8-1997. In other words, according to the appellants, Section 4A is not applicable to the said goods. Each piece weighing around 5.5 gms. is twist wrapped separately with printed laminated film. The individual pieces are packed into 0.825 Kg. Pet jars or 0.220 Kg. Poly bags. Each piece carries a marking on the wrapper "MRP Re. 1/-". As regards Pet Jars/Poly Bags, there is a marking "Rs. 1 per unit" and ....
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....er 15/12 Pet Jars or 72/32/32 Poly Bags are cleared on payment of duty under Section 4 to the Regional Depots of ITC. From the Regional Depots of ITC, the said Cartons are sold to Wholesale Dealers, who in turn sell the same to the Sub-Distributors. The Sub-Distributors in turn sell a few Pet Jars or a few Poly Bags to the Retailers, depending on their requirement. It is the Retailers who display the individual units of 'Eclairs' in Pet Jars/Glass Jars and sell to the ultimate consumers and not the appellants. (iii) After referring to the definition of "Wholesale Package" in Rule 2(x) of the SWM (PC) Rules, the learned Advocate submitted that in the instant case, the cartons containing 15 pet jars or 72 poly bags are wholesale packages and are required to be assessed under Section 4, since they are sold in wholesale, and are not sold to the ultimate consumer. It was further pointed out that any package containing 10 or more than 10 retail packages would come within the meaning of a wholesale package, provided that the retail packages are labeled as required under the Rules. (iv) After taking us through the definition of 'multi-piece package' and 'retail package', 'retail sale' ....
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....(A)] * ITC Ltd. v. CCE, New Delhi - 2004 (171) E.L.T. 433 (S.C.) 5. The learned JCDR urged that all the requirements for assessment under Section 4A are satisfied in the present case. First, the commodity is notified under the Standard of Weights and Measures Act, 1976. Under Section 4A(1) of the Central Excise Act also, the impugned commodity is notified. The Pet Jars/poly Bags, by no stretch of imagination, can be called as wholesale package. In this view of the matter, they are not exempted from marking the MRP on these packages. Hence, assessment under Section 4A, as held by the lower authorities, is in order. 6. We have gone through the records of the case carefully. An identical issue came up before the CESTAT, West Zonal Bench at Mumbai in the case cited supra by the learned Advocate for the appellants. The Tribunal has come to the conclusion that the packages under which the impugned products are sold by the appellants clearly fall within the exemption provided under Rule 34(b) of the said Rules as each individual piece weighs less than twenty grams. The reasoning adopted by the Tribunal is that the impugned goods are required to be packed and sold by weight viz. Kilogr....
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.... individually packaged or labelled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole." It is clear that a 'multi-piece package' is intended for retail sale. In the present case, the Pet Jar contains 150 individual pieces. 6.1 We should also note the definition of 'retail sale'. According to Rule 2(q) "retail sale", in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer. Therefore, it is very clear that "retail sale" can be for consumption by an individual or a group of individuals. To argue that only sale of individual piece is retail sale is not in accordance with the above mentioned definition of 'retail sale'. Thus, the purchase of a Poly Bag or a Pet Jar can be held as a retail purchase and hence the transaction constitutes a retail sale. 6.2 Coming to Rule 34(b), we find that the exemption is applicable when the net weight or measure of the commodity is twenty grams or twenty millilitres or less, if sold by weight or measure.....
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....irrespective of whether then fall for valuation under Section 4A or Section 4 of the Central Excise Act, enter trade through wholesale sale at agreed prices. It is also no requirement under Packaged Commodities Rules or under Section 4A of the Central Excise Act that goods covered by those provisions should actually be sold in retail. This is made clear by the definition of 'retail sale' under Rule 2 of Packaged Commodities Rules. The definition makes it clear that 'retail sale' includes "distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual". In view of the above observations, with due respect, we do not agree with the findings of the Mumbai Bench. 6.3 The appellants have argued that since each individual piece is less than 5.5 gms, there is no requirement for printing the MRP on the individual unit by virtue of Rule 34(b). They have produced a letter from Controller of Legal Matrology, Bangalore, to the effect that as per sub-rule 12(2) of Standards of Weights & Measures (P the individual sugar boiled confectionery (Pillow packed and twist wrapped) has to be sold by weight. Armed with this clarificat....