TaxTMI 
TaxTMI 
2017 (12) TMI 138
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....ellant is selling some goods to the industrial buyers on transaction value and in terms of Section 34 of the Standards of Weights and Measures (Packaged Commodity) Rules, the appellant is not required affixed MRP for goods sold to the industrial consumers. Therefore, a show cause notice dt. 23.03.2006 was issued to the appellant by invoking extended period of limitation on the ground that as the appellant is not required to affixed the MRP on the clearances made to the industrial consumers, therefore, they are required to pay duty under Section 4 of the Central Excise Act, 1944 on transaction value to demand differential duty along with interest and imposed penalty. The matter was adjudicated and the demand of duty was confirmed along with interest and equivalent amount of penalty was also imposed on the appellant. Aggrieved from the said order, the appellant is before us. 3. The Ld. Counsel for the appellant submits that the appellant is manufacturing Insulating Varnish since 1999 and affixing the MRP thereon in the package of 5 Kgs, 25 Kgs and 205 Kgs. In some cases, these goods were sold to whole sale dealers who ultimately sale the goods to the ultimate consumers. In some case....
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....are that the appellant is manufacturing Insulating Varnish in the packages of 5Kgs, 25Kgs and 205Kgs and affixing the MRP thereon. The appellant is paying duty on the said goods under Section 4A of the Act. It is also a fact that the appellant is clearing some goods to the industrial consumers on which there is no marking that these goods are meant for the industrial consumers but the MRP is affixed on those goods. In that circumstances, the issue before us is that in such cases:- Whether the appellant is required to pay the duty as per the Section 4A of the Act or Section 4 of the Act The other issue arises:- Whether in the facts and circumstances of the case, the extended period of limitation is invokable or not on merits 8. We find that the appellant is manufacturing Insulating Varnish in the packages of 5Kgs, 25Kgs and 205Kgs and affixing the MRP. At the time of the manufacturing of the said goods, the appellant is not known whether these goods are being sold to the industrial consumers or through whole seller or not In that circumstances, the MRP has been affixed on the containers in terms of Rule 2A of the Standards of Weights and Measures (Packaged Commo....
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....s by the appellant is a continuous process, therefore, these goods are meant for retail sale. Accordingly, the appellant has affixed MRP on each package of the tiles, even if the quantity supplied is in bulk but it is clearly indicated in the purchase order that the goods have to be supplied in boxes of 15 tiles which means that supplies are retail packs on which MRP is printed. As there is no time gap between the receipt of the purchase order and effected supply, which would also prove that supplies are made out of the quantity already manufactured by the appellant, packed and kept ready for sale. A similar situation came up in the case of H&R Johnson (India) Ltd. (supra), wherein this Tribunal has observed as under :- "5. We have carefully considered the submissions made by both the sides. We have also perused the sample purchase orders placed by some of the institutional buyers. From these documents, it is seen that the goods are required to be supplied in standard packages consisting fixed number of specified tiles. These packages are the same in respect of retail sale also and on these packages the appellant has declared the MRP. In other words, there is no difference in res....
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....he Central Government must have specified such goods by notification in the Official Gazette; and (v) The valuation of such goods would be as per the declared retail sale price on the packages less the amount of abatement. In the said decision, the Hon'ble Apex Court further held that the material consideration for assessment under Section 4A is not the nature of sale but such sale should be in a package and there should be a requirement in the SWM Act or the Rules made thereunder for displaying MRP on such packages. 5.2 In the present case, the above stipulations are completely satisfied. This decision of the Hon'ble Supreme Court was also followed by the Tribunal in the case of Sagar Cements Ltd. (supra) where there was a bulk supply of cement in retail packages on which MRP was declared. This Tribunal held that such bulk supply would also come under the purview of Section 4A and the duty liability has to be discharged under the said provision. The said decision was also affirmed by the Hon'ble Apex Court. In ITEL Industries Pvt. Ltd. v. Commissioner of Central Excise [2004 (163) E.L.T. 219] case, telephones were supplied in bulk for exclusive use of the Department of Telec....