TaxTMI 
TaxTMI 
2013 (8) TMI 270
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.... not imposed under Rule 26 of the Central Excise Rules, 2002 for the reasons discussed in the notice. The operative portion of the notice requires the petitioner to produce all the relevant evidence upon which they intend to rely in their support and to state in their written explanation whether they wish to be heard in person before case is adjudicated. Learned counsel appearing for the Central Excise Department submits that the writ petition is not ordinarily maintainable against demand-cum-show cause notice. The petitioner will have sufficient opportunities, to establish that he is not liable to pay excise duty and penalty as demanded from him. It is submitted that the petitioner did not cooperate in the enquiry with the Adjudicating Officer and thus he should not be allowed to be heard on the evidence and issues, which he could have raised before the adjudicating authority. Shri V.K. Upadhyay, learned Senior Counsel submits that the show cause notice suffers from gross error of facts, which constitute jurisdictional error and of the provisions of law. He is as whole seller entitled to avail benefit as a whole seller selling branded tobacco in dibbis (boxes) of the quantit....
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....raphs 19 to 31 of the impugned notice:- "19. It also appears that the party have intimated to the department on 24.8.2006 regarding the clearance of their goods under Section 4 and claimed that their packing is below 10 gms to be specific 7 grms & 6 grms, therefore they are exempted from the provisions of standard weight and measurement Act but party h ave submitted nothing as an evidence showing that the goods cleared by them bear the weight on individual packets. However, the party, vide their letter dated 14.6.2012 submitted the detailed, composition of wholesale package of different brands of tobacco being manufactured by them, which shows the content of per package/dibbi brand wise, quantity in weight and number per bag, but they have not mentioned the MRP of the dibbi in the said letter. When they were enquired for this they have submitted that they did not maintain information in this regard, however, they have stated that they mention MRP in the retain packet in the interest of the gullible consumer. 20. And whereas from the plain reading of Rule 26 of LMPC rules (earlier Rule 34 of SWMPC Rules), it is clear that only those manufacturers are exempted to declare MRP in....
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....packages by the party itself and not mentioning the weight on the packets clarify their intentions to sale their goods in the market on the basis of MRP only and not on the basis of weight. 24. Any whereas it also appears that the party has claimed exemption as per provisions of Rule 26 of LMPC Rules ibid, as such the onus of proof of fulfilment of conditions, subject to which on exemption, by way of provision of said rule is admissible lies upon them only and where condition precedent is not fulfilled before claiming any exemption, such benefit appears not to be admissible to them. 25. And whereas it also appears that an exemption provision either through on act or a rule or through a notification, is like an exception and on normal principles of interpretation of its provisions, it appears to be construed strictly because of legislative intention, intended to augment state revenue. And furthermore "exemption, being in the nature of exception, appears to be construed strictly at the stage of determination, only, whether partly falls within its terms or not, and in case of doubt or ambiguity, benefit of such doubt or ambiguity in the said exemption appears to go to the State.....
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....ght of content in packets, there appears no option but to understand that the party has failed to discharge onus regarding mentioning of weight of goods in every individual packets. In view of above, it appears that the party have failed to discharge their onus and hence the goods are liable to be assessed under Section 4 A in place of Section 4 as done by the party. 28. And whereas it also appears that the party has claimed exemption as per provisions of SWMPC Rules wherein it is clearly mentioned that the goods should be sold by weight (in instant case). In the circumstances, it appears to be party only who has to discharge onus of poof that their goods are being sold by weight. However, it has been found that no where i.e. either in packets of goods or in packages containing such packets of goods, weight is mentioned. It has been observed that only MRP of goods is mentioned and also the partner of party i.e. Shri Himanshu Shukla has clearly stated in his statement dated 21.9.2011 that they do not mention the weight on packets/packages. It is also observed that it is the party only, specifically, to their products being manufactured/cleared, and it is they only who have to dec....
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.... while the provisions of SWM Act/Rules clearly show that the goods, are exempted from the provision, if sold by weight only, which apparently clarify that the party has not followed the resonance of provisions contained in the Rules, ibid. And furthermore, it also appears that the party vide their letter 14.6.2012 have tendered samples of their produces which show both details i.e. the details of weight and MRP of the packet, printed on it, this itself clarify that the party were in the habit of not mentioning the weight of product in their packets earlier and only MRP was being printed on their product's packets and after the query raised by the department, they have rectified the mistake being done earlier by them, accordingly, the samples tendered by the party vide their letter dated 14.6.2012 are being considered as an evidence in the instant case. 31. On the basis of above, it is crystal clear that the party have willingly, suppressed all the facts and mis-interpreted the provisions of exemption in their favour, to pay less duty on the clearance of their products. The party who appears to be well versed that the provisions of Section 4A of Act ibid are directly related to t....