TaxTMI 
TaxTMI 
2014 (8) TMI 658
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.... all the six SCNs stated above involving duty and period involved is extracted below:- S.No. Show Cause Notice No. Date Period Amount of duty 1 IV(HQ)DCN/SPL(FT)RTK/2004/88 4.2.04 01.01.99 -31.5.03 77,65,484 2 IV(HQ)DCN/SPL(WT)RTK/2004 4.2.04 01.01.99 -31.5.03 36,13,340 3 IV(HQ)DCN/SPL/117/Rohtak/04/470 21.6.04 01.06.03-31.03.04 15,71,870 4 IV(HQ)DCN/SPL/116/Rohtak/04/466 21.6.04 01.06.03-31.03.04 16,27,971 5 IV(69)4/SPL(FT)ACR/5/2005/2877 21.4.05 01.04.04-31.12.04 4,34,611 6 IV(69)4/SPL(FT)ACR/5/2005/2877 21.04.05 01.04.04-31.12.04 1,73,234 2. Main allegation in the show cause notice in respect of appellant was that it cleared the ceramic tiles to different bulk buyers viz. builders, contractual, industrial buyers, hotel, schools, etc. Department has alleged that instead of assess....
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....f the Act. 4. Appellant invited reference to para 6 of CBEC Circular dated 28.2.2002 to submit that it is governed by section 4A of the Act and relevant part of the Circular reads as under: It is therefore, clarifies that, in respect of all goods (whether notified under Section 4A or not) which are not statutorily required to print /declare the retails price on the packages under the provisions of SOW & M Act, 1976, or the rules there under or any other law for the time being in force, valuation will be done under Section 4 of the Act ibid. The circular further clarified that 'there could be instance where the same notified commodity would be partly assessed on the basis of MRP u/s 4A and partly on the basis of normal price or transaction value u/s of the Act ibid 5. Appellant further defended their case on the ground that there is no bar in the central excise law that manufacturer cannot sell the goods in retail by themselves and the sale by them to direct users for their consumption. This can be very well regarded as sale in retail. So looking into this angle also, the dictum of retail sale concept as ....
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....equired to affix the MRP on the package. 8. Appellants also raised the issue of time bar on the ground that necessary price declarations were filed consequent to issue of Notification No.18/1998-CE(NT) dated 2.6.1998 and Notification No. 52/2000-CE (NT) dated 16.11.2000. Appellant declared MRP of the product and abatement was availed. Invoices issued by the appellant shows the price as declared in the price declaration and proper duty was paid. They further contended that monthly return/ ER-1 returns were filed by the appellant clearly showing payment of duty under section 4A after claiming abatement. They also claimed benefit of cum-duty deduction on account of duty in terms of law laid down by Honble Supreme Court in the case of CCE vs. Maruti-2002 (141) ELT 3 (SC). Consequently, they contested imposition of penalty and interest did not arise at all on the ground that ceramic tiles were notified for valuation under section 4A and not for valuation under section 4. Appellant relied upon the following case law in support of their contention:- (i) Whirlpool of India Ltd. Vs. UOI-2001 (137) ELT 42 (P&H) (ii) Mona Electronics vs. CCE-2001 (135) ELT 1293 (iii) ITEL Industr....
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....eld that declaration of retail sale price was not required on the package cleared by the party to different bulk buyers under contract since such sales were not covered under definition of retail sale defined under Rule 2(q) of Standard Weights & Measures (Packaged Commodities) Rules, 1977 being not sold, distributed or delivered through retail sale agencies or other instrumentalities for consumption by an individual or group of individuals or any other consumer. He therefore concluded that such clearances were not eligible for valuation under section 4A of the Act. Rule 2(q) of Standard Weights & Measures (Packaged Commodities) Rules, 1977 which defines retail sale as under:- retail sale is 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. 14. Commissioner did not accept the plea of the appellant that there was no bar in the central excise law that manufacturer could not sell the goods in retail by themselves and the sale by them to direct us....
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....t of Packaged Commodities Rules under Rule 34 of those Rules and that white cement consignments sold to builders were thus exempt. It is also emphasised that cement packets meant for builders were not for sale in retail. They have also relied on the fact that the packets in question were marked as goods Not for retail sale. The appellants have also relied on the clarification issued by the Central Board of Excise & Customs under Circular No. 625/16/2002, dated 28-2-2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned Counsel for the appellants has also relied on several decisions of the Tribunal - Bharti Systel Ltd. v C.C.E. [2002 (145) E.L.T. 626 (T) = 2002 (51) R.L.T. 649]. C.C.E. v. Trishul Research Lab. Pvt. Ltd. [2002 (144) E.L.T. 204], Goa Bottling Co. Ltd. v. C.C.E. [2001 (128) E.L.T. 81 (LB)] and H & R Johnson (India) Ltd. v. CBEC [2002 (144) E.L.T. 506 (Kar)]. 4.We have perused the records and considered the submissions made by both sides. We find merit in the submissions made on behalf of the appellant. Marking on the goods prominently....