2018 (8) TMI 316

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....xing M.R.P. on them and discharging duty liability under Section 4A of the Central Excise Act, 1944. The Department took the view that the subject goods were not intended to be sold in retail, were not required to be affixed with M.R.P. as they are exempted under Rule 34(b) of the Standard of Weights and Measures (Packaged Commodity) Rules, 1977 (SWM (PC) Rules); that the jars/pouches are admittedly a wholesale pack, hence, these goods merited valuation in terms of Section 4 of the Act only. Accordingly, proceedings were initiated by way of Show Cause Notices which culminated in an order dt. 22.7.2010 (impugned order) inter alia ordering as under: A. In respect of SCN No. 06/2007 dt. 26.03.2007 demand of Rs. 54,90,383/- for the per....

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....ation is not invokable and the demand during the period March 2002 to February 2006 is barred by limitation for the following reasons : (i) The SCN for the period March 2002 to February 2006 has been issued on 26.03.2007, which is beyond the normal period of limitation. Therefore, the demand of Rs. 52,92,341/- for the said period is barred by limitation. (ii) Extended period of limitation is not invokable. The Department was aware that the appellant was clearing the sugar confectionaries in jars/pouches and valuing the jars under Section 4A. This can be seen from the declaration dated 11.12.2000 filed by them in terms of Rule 173C of the Central Excise Rules, 1944. (iii) It is settled legal position that suppression with intention ....

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....e payment of excise duty. (v) The appellant also submits that penalty is not imposable. Out of the total demand of Rs. 83,28,889/-, the appellant had paid an amount of Rs. 30,36,548/- (covered by normal period of limitation) by way of adjustment of CENVAT Credit on 27.02.2015. 3. On the other hand, on behalf of the Revenue, Ld. AR Shri. S. Govindarajan, supports the findings in the impugned order. He drew our attention to para 9.H at page 23 of the impugned order where the adjudicating authority has analyzed the contentions of appellant against invocation of extended period. He submits that the present case is one involving suppression of certain vital information for deciding the application of M.R.P. valuation under Section 4A. It i....

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.... however, on an appeal filed by the Department in the Central Arecanut & Cocoa Marketing & Processing Co-Op. Ltd. (supra) case, the Hon'ble Supreme Court dismissed the appeal and thus affirmed the Tribunal decision that packages containing 100 or more pieces of chocolate, weighing 5.5 gms will not attract assessment under Section 4A ibid., as reported in 2008 (232) E.L.T. A107 (S.C.). This is the settled law in the matter which the Ld. Advocate was fair to point out and concede. 5.3 The only plea made by the Ld. Advocate is that the issue is hit by limitation and, therefore, the demands cannot survive. We find merit in this plea. The Supreme Court in Continental Foundation Jt. Venture Vs. C.C.E., Chandigarh-I - 2007 (216) E.L.T. 177 (S.C....