TaxTMI 
TaxTMI 
2014 (6) TMI 453
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....ed counsel for the appellant submits that the appellant is a manufacturer of ceramic tiles falling under Chapter 69 of the First Schedule of the Central Excise Tariff Act, 1985. These tiles have been notified under Section 4A of the Central Excise Act, 1944 and the appellant is discharging duty on these tiles as per the provisions of Sectin4A of the said Act. The case of the Revenue is that the ceramic tiles are cleared to institutional buyers as well as industrial consumers such as, builders, real estate developers, etc. and in respect of sales made to such institutional/industrial consumers, there is no statutory requirement of declaring/affixing the MRP on the packages of the goods and, therefore, the provisions of Section 4A of the Central Excise Act are not attracted and the duty liability needs to be determined in terms of the transaction value under Section 4 of the Central Excise Act. The learned Counsel for the appellant submits that the appellant manufacture tiles of various designs and sizes and packs the tiles in standard packages, on which MRP is declared. These tiles are sold through their own depots/dealers to the ultimate consumers. Sometimes, they receive orders fr....
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....rs/builders are not for retail sale. The learned counsel further argues that from the purchase orders placed by the buyers of these goods on the appellant, it can be seen that the goods have to be supplied in retail packages; therefore, even as per the contract entered into with the buyers, the goods are meant for retail sale and hence the impugned demands are not sustainable in law. 3.3 The learned counsel places reliance on the decision of the hon'ble apex Court in the case of Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan 2007 (215) ELT 327 (SC) wherein it was held: "sub-section (1) of Section 4A was link sub-section (1) was linked with the packages of the goods in respect of which the retail sale price was required to be printed under SWM Act and the Rules made thereunder or any other law. Sub-section (2) then provides that such specified goods where they are excisable goods would be valued not on any other basis but on the basis of the retail sale price declared on such packages. The Section also provides that the assessee would be entitled to the deduction from such valuation the amount....
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....ffixed, assessment has to be done under Section 4A only. It was further held that, it is for the assessee to claim exemption if they did not want assessment to be made under that section. 3.6 In the light of the above, the learned counsel pleads for setting aside the impugned order and allowing the appeal. 4. The learned Additional Commissioner (AR) appearing for the Revenue, on the other hand, reiterates the findings of the adjudicating authority. In particular, it is his contention that as per the Packaged Commodity Rules, 2011, 'institutional consumer' has been defined as those consumers who bought packaged commodities directly from the manufacturer/packer for service industries like transportation (including railways and airways), hospitals or any similar industry. 'Industrial consumers' means, those consumers who buy packaged commodities directly from the manufacturer/packers for using the product in their industry for production, etc. In the present case, the sales made to real estate developers/builders satisfy the above definition and therefore, such sales stand excluded from the purview of declaration of MRP of Packaged Commodity Rules, 2011. Inasmuch as ther....
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....nting the Legal Metrology (Packaged Commodity) Rules 2011, it is absolutely clear that the supplies made by the appellant to the various institutional buyers are not excluded from the declaration of MRP under the Packaged Commodity Rules. We cannot disregard these clarifications given by the competent authorities in the matter. 5.1 We further observe that the hon'ble apex Court in the case of Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan (supra), had clearly held that to come under the purview of Section 4A, the following conditions should be satisified: (i) The goods should be excisable goods; (ii) They should be such as are sold in the package; (iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package; (iv) The Central Government must have specified such goods by notification in the Official Gazette; and (v) The valuation of such goods woul....