TaxTMI 
TaxTMI 
2017 (9) TMI 868
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....r. B. Ravichandran These 23 appeals are against common impugned order dated 28/02/2015 of Commissioner (Appeals), Jaipur. One appeal is by the appellant/assessee covering the period August 2005 to 13/01/2007 contesting the imposition of penalty only. The other 22 appeals are by Revenue covering period 14/01/2007 to 09/03/2010 contesting the dropping of demand of differential duty due to confirmation of assessment under Section 4, in the impugned order. 2. The brief facts of the case are the assessee/appellant are engaged in the manufacture of branded chewing tobacco liable to Central Excise duty, the nature of packing and practice of sale as captured in one of the show cause notices is as below :- S.No. Description printed on multipiece....
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....ns of the Standards of Weights and Measures (PC) Rule, 1977 are very much applicable to the multi piece packages in which the commodities are cleared by the assessee. The goods manufactured and cleared by the assessee therefore appear to be chargeable to Duty on the basis of value determinable under Section 4A of the Act". 3. Series of show cause notices were issued with identical allegations. The notices proposed assessment of impugned goods in terms of Section 4A holding that the appellant/assessee cleared branded chewing tobacco in multi-piece retail packages and, as such, the assessment is to be done under the said section. When the matter reached the Commissioner (Appeals), he held that the appellant/assessee is liable to assess the ....
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....Rule is also applicable to the manufacturer in the instant case. 6. The learned Counsel for the appellant/assessee supported the findings recorded in the impugned order. He submitted that in their appeal covering the period prior to 13/01/2007 they are not contesting the valuation in terms of Section 4A in view of the decision of the Tribunal in their own case - 2012 (276) E.L.T. 77 (Tri. - Del.), which has been affirmed by the Hon'ble Supreme Court in - 2014 (301) E.L.T. A103 (S.C.). However, he submitted that there is no case for imposing penalty in situation like this, which is involving purely interpretation of the applicable valuation provision readwith the provisions of legal metrology dealing with Weights and Measures and retail pac....
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....fore the Tribunal in the case of CCE, Delhi - I Vs. Shakti Zarda Factory India Pvt. Ltd. - 2017 - TIOL - 1896 - CESTAT - DEL. The Tribunal after examining various earlier decisions of High Courts and Supreme Court recorded as below :- "13. In Gupta Tobacco Co. (supra), the Tribunal held that chewing tobacco was not capable of being sold in numbers but was sold in weights of 5, 7 and 9 gms. pouches with no requirement for MRP under SWM Rules. The said decision has been upheld by the Hon'ble Supreme Court (supra). In Loknath Prasad Gupta (supra), the Tribunal held that 25 pouches of Khaini each containing 5 gms./ 9 gms. packed in polythene packs without MRP in such package is not governed by valuation under Section 4A. This order of the Trib....
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....letter dated 24/07/2003 of Maharashtra Manufacturers Association, the controller of Legal Metrology, Government of Maharashtra vide his letter dated 20/08/2003 clarified on similar lines. 15. On Careful analysis of the issue involved, legal provision of Section 4A of the Central Excise Act, 1944 and applicable provisions of SWM Act and Rules made thereunder and on close scrutiny of impugned order and the grounds of appeal, we find that the impugned goods cannot be subjected to as MRP based assessment under Section 4A. The findings of the lower authority in the impugned orders are legally sustainable. The refund involved in one of the appeals allowed by the Commissioner (Appeals) shall be granted after due scrutiny of documents as per the r....