AI Drafter 
TaxTMI 
TaxTMI 
2017 (11) TMI 751
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....ce dated 16.03.2011 raising demand of duty for the period 2006-2007 to July 2010 and another show cause notice also within the limitation period alleging that they have cleared final product in packets of 25Kg and have paid duty in terms of provisions of section 4 of the Central Excise Act, 1944, whereas, they were required to pay duty under Section 4A of the said act. Accordingly, proceedings were initiated and demand for differential duty was proposed, which stand culminated in the order passed by the authorities confirming the demand along with confirmation of interest and imposition of penalties. 2. The said order was challenged before the Tribunal and vide its Final Order No.A/321/2012-EX(BR) dated 02.03.2012, The Tribunal remanded ....
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....adjudicating authority that such 25kgs packages are further sold by the dealer to the noticee, itself, who converts the same into retails packages of 5 kgs each. MRP is printed on such retails packages and the same are cleared by them on payment of duty on MRP affixed on the said packages. In spite of making above clear submissions before the adjudicating authority. We find that the said plea does not stand taken note of by the adjudicating authority, discussed by him or any finding arrived at by him. As such, it has to be at this prima facie state, arrived at that such factual contention is correct and does not stand rebutted by the adjudicating authority. If that be so, we are of the view that 25 kgs. Packages sent to the dealer are not r....
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....o the fact that the goods cleared in 25kgs. Packing have been received back and subsequently repacked in smaller packing's i.e. 5 kg or 1 kg. packings on which duty on MRP basis has been discharged. The ntoicee enclosed sample copies of invoices on which 25kgs. Packing have been cleared by the Noticee to M/s Bayer Crop Sciences and the subsequent invoices on which the same have been received back from M/s Bayer Crop Sciences and also the copies of co-relatable invoices on which the goods were subsequently cleared in smaller packing to show that the duty on those goods had been paid under Section 4A of the Central Excise Act. The Noticee also enclosed copies of corresponding dispatch slips in which the batch is specifically mentioned. Th....
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....ce dated 19.07.2011." 4. In view of the said evidence produced by the appellant on record, it was contended by him that the duty stands again paid by them on the 5kgs packages and there was no requirement to pay any duty on 25Kgs packings in terms of Section 4A of the Act. 5. On going through the finding portion of Commissioner, we note that he has denied the benefit to the appellant and has against upheld the differential duties by observing as under: "A. On reading of this provision. It is apparent that industrial consumer is the consumer who buys packaged commodities for using the product in his industry for production etc. undisputedly, M/s Bayer Crop Science Ltd. is registered with the Excise Department as a dealer and n....
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....erential duty in terms of Section 4A, the Noticee w.e.f January, 2011 onward has resorted to valuation of the impugned goods under Section 4A of the Act. I therefore, find that 25kgs. Packages were treatable as retail packages meant for ultimate consumer." He also upheld the invocation of extended period of limitation. 5. The contention of the Ld. Advocate against the present impugned order passed by the Commissioner (Appeals) is that the directions of the Tribunal have not been carried out by the adjudicating authority. There is no finding by the Commissioner that 25kgs.packages were also sold in retail, thus requiring fixation of MRP. The Tribunal had already observed that the such packages were not retail pack as they were being su....