2018 (11) TMI 410

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....by the appellant to PVRs in bulk, which ultimately sell these bottles to their consumers in retail. The appellant was located in the State of Jammu and Kashmir and availing the area based exemption under Notification No.56/02-CE dt.14.11.2002. As per the said notification, whatever duty paid through PLA, the appellant is entitled to refund. The appellant has paid duty on these mineral water in terms of Section 4A of Central Excise Act, 1944 i.e. MRP is an abatement as applicable. The Revenue was of the view that the appellant is selling the mineral water to PVRs who are institutional consumers, therefore, valuation is to be done in terms of Section 4 of the Central Excise Act, 1944. In these set of facts, the proceedings were initiated and ....

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....ese PVRs cannot be said institutional buyers. Further, we find that the Hon'ble Supreme Court in the case of Jayanti Food Processing (P) Limited (supra) has examined and observed as under:- "37. These appeals are in respect of Mineral Water bottles. The manufacturer used to pack 12 200 ml. bottles in a single package and used to mention the MRP on the said package. The assessee was paying the duty under Section 4A(1) of the Act. The Tribunal, relying on the judgment in Jayanti Food Processing Pvt. Ltd. v. CCE, Jaipur [2002 (141) E.L.T. 162] held that the assessment was bound to be under Section 4A(1) and not under Section 4 of the Act as the package amounted to a "retail package" in view of the provisions of Rule 2(p) of the SWM (PC) Rules....

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.... under Section 4, the present assessee would want it under Section 4A of the Act. 38. The factual scenario is that though the MRP was declared on the package of 12 bottles, the bottles did not have any MRP instead it was written : (a) not for re-sale; (b) specially packed for Jet Airways. No retail price was written on 200 ml. Bottle. There is further no dispute that the assessee had entered into a contract with Jet Airways dated 13-2-2002 and the contracted price of sale for the goods was Rs. 2.61. It was the condition in the contract that each bottle to be supplied shall have a printed label "specially packed for Jet Airways". On the basis of these facts Shri Subba Rao urged that this case, if it was identical with Jayanti Foods case, t....

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....tten on the package "not meant for sale". It is, therefore, obvious that the "package" containing 12 bottles cannot, therefore, be viewed as a "wholesale package". Once that position is clear, there is no question of the applicability of Section 4 of the Act as the "package" as it is a retail sale of the package to the Jet Airways which supplies the same to the passengers on demand. Therefore, the contention of Shri Subba Rao has to be rejected that we should draw a parallel in this case with the appeal of Jayanti Foods and hold that Section 4 is applicable to the transactions. Once that position is clear, the "package" will be covered under Section 6 requiring the declaration of "retail sale price" which appears on the package. In this beh....