2016 (12) TMI 587

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....er Section 4 of the Central Excise Act, 1944, instead of Section 4A. 2. During the period 01.4.2001 to 31.8.2004 the appellants sold, in some cases, CFL in bulk to Govt. Departments namely (a) Assistant Garisson Engineer, (b) Central Department of Stores Bamaroli (c) BHEL, and (d) Western Refrigeration (O.E. Manufacturer) and valued the same on MRP basis under Section 4A of the Act and paid the duty on the abated value of MRP. Revenue was of the views that in these cases goods were not sold to ultimate customers in retail but consumed either by them (bulk) or utilised for the manufacturing of other articles. It appeared that MRP based assessment under section 4A(1) of the Act shall not be applicable to such clearances, not being retail s....

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....appellant that the contract price realised by them is less than the MRP affixed is not based on facts. The contract price show at Sl.No. 1 of Annexure 'A' to show cause notice is Rs. 15,245/- while MRP is Rs. 12,390/- only. Thus it is clear that the aforesaid claim of the appellant is not correct. Thus it is evident that MRP is not t e sole consideration in this case. 3. Being aggrieved the appellant is before this Tribunal. The Id. Counsel urges that the Id. Commissioner have committed mistake of fact and thus the impugned order is vitiated. He takes us to the relevant Annexure 'A' to the show cause notice dated 8.5.2006, in the paper book from which it is evident that the sale price under contract is Rs. 15,345/- for 17....

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....here is a specific declaration that the SWM (PC) Rules shall not apply to any "package" containing a commodity if the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of "servicing any industry, mine or quarry". Learned counsel points out that the "package" which is sold by the assessee mentions that it is specially packed for the exclusive use of the catering industry. 35. Learned counsel further argues that such "package" was for the purposes of "servicing the hotel industry or catering industry" as the case may be. Learned counsel is undoubtedly right when he seeks to rely on Rule 34 which provides for exemption of the "pack....

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.... not invocable. 5.  The learnedly A.R. for Revenue relies on the impugned order. Further relying on the findings in the orders of the Court below he emphasises that the goods have been purchased by institutional buyers in bulk, the provisions of the packaged commodities rules for marking the same with MRP is not required and accordingly the appellant was required to pay duty under Section 4 as is held by the Courts below. 6.  Having considered the rival contentions we find that the issue is no longer res Integra, as held by the Honourable Supreme Court in the case of Liberty Shoes Ltd (supra) and accordingly we hold that there being no dispute that CFL was an item specified under Section 4A of the Act (which is covered under....