2023 (5) TMI 385

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....e is returned to the customer by way of issuing credit notes upon payment of excise duty under Section 4 shown in the ER-1 return for the month of January, 2006. 02. The brief facts of the case are that the aforesaid appeal no. E/1273/2011 has been preferred by the Commissioner of Central Excise & Service Tax, Bhavnagar against the impugned order-in-original no. 14-28/BVR/COMMISSIONER/2011 dated 19.07.2011, the department has preferred an appeal against the portion of the order by which the learned Commissioner has dropped the proceedings for total duty of Rs.5,19,87,168/- under 15 show cause notices for the period from January, 2006 to December 2009 on the ground that goods are liable to be assessed under Section 4 of the Central Excise Act, 1944 as contended by the assessee. The assessee has preferred an appeal against that part of the order by which the learned Commissioner has confirmed the demand of Rs.16,79,841/- under Section 11D of the Central Excise Act, 1944 on the ground that the company has collected excise duty from buyers as assessed under Section 4A of the Central Excise Act and while they have paid lesser duty to the government under Section 4 of the Central Exci....

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....'ble Supreme Court however, due to amendment in Standards of Weights & Measures (Packaged Commodities) Rules, 1977 (SWM Rules) with effect from 13.01.2007, the benefit of the earlier judgment shall not be applicable to the assessee. As regard the assessee's appeal, he reiterates the finding of the impugned order. 05. Shri B.L. Narasimhan and and Shri Ishan Bhatt, learned counsels appearing on behalf of the assessee in respect of the revenue's appeal no. E/1273/2011 submits that the issue is squarely covered by the decision of the tribunal in their own case in M/s. Swan Sweets Pvt. Ltd. reported at 2006 (198) ELT 565 which was upheld by the Hon'ble Supreme Court reported at 2010 (259) ELT 5 (SC). As per the said judgment, the wholesale pack of 500 gm or 1 kg is not a retail pack therefore, the MRP of wholesale pack cannot be taken for the valuation in terms of Section 4A whereas, the individual confectionary which is less than 10 gm should be considered and as per Rule 34 of Standards of Weights & Measures (Packaged Commodities) Rules, 1977 (SWM Rules) i.e. exemption from affixing the retail sale price on the goods of less than 10 gms, the valuation under Section 4A is not correc....

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....sue in hand laid down by the Hon'ble Supreme Court. Despite the substitution of Rule 2(j), the provision of Rule 34(b) of SWM (PC) Rules, 1977 remain intact, according to which there is no requirement for affixing/printing retail sale price on the package of the goods of less than 10 gram therefore, we do not find any substance in the revenue's appeal. The law laid down by the Hon'ble Supreme court in the appellant's own case shall continue to be applicable in the present case also. The relevant order of the Hon'ble Supreme Court in the appellant's own case is reproduced below:- 2. In view of the order of this Court dated 15th September, 2008, dismissing CA. No. 7559 of 2008 (D.19192/2008) [2008 (232) E.L.T. A107 (S.C.)], preferred by the Revenue against the order of the Tribunal in the case of Central Arecanut & Cocoa Marketing & Processing Co-Op. Ltd. v. C.C.E., Mangalore, 2008 (226) E.L.T. 369 (Tri.-Chennai), the issue raised in the appeals is no more res integra. In the said order, the Tribunal relying on its earlier decision in the case of M/s. Swan Sweets Pvt. Ltd. [2006 (198) E.L.T. 565 (Tribunal)], one of the respondents in the present appeals had held that a packa....

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....y other provision of this Act or the rules made thereunder, [every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods] in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. [(1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government.] [(2) Where any amount is required to be paid to the credit of the Central Government under [sub-section (1) or sub-section (1A), as the case may be,] and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the ....