TaxTMI 
TaxTMI 
2024 (9) TMI 175
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....a) of the Central Excise Act, 1944. 4. It is alleged that on scrutiny of monthly returns submitted by the appellant it appeared that the appellant has classified the said goods under Chapter Sub-heading No. 2106 9099 of the First Schedule to the Central Excise Tariff Act, 1985 but they did not pay allegedly leviable Central Excise duty. 5. As per the Show Cause Notice, under Rule 34(b) of the Standard of Weights and Measures (Packaged Commodity), Rules, 1977 package of less than 10 gms were exempt from the applicability of PC Rules. Therefore, the valuation of said goods by the appellant during a period June, 2012 to December, 2012 payment of duty under Section 4A of the Act upon availment of abatement of 35% provided by the CBEC notification No. 49/08-CE(NT) dated 24.12.2008 was erroneous and valuation of the said goods should have been read under Section 4 of the Act and duty of the Excise paid accordingly which is not done. Therefore, the demand is sustainable. 6. It was also alleged that benefit of Notification 12/2012 CE dated 17.03.2012 was not available to the appellant since the goods were cleared in sealed containers. Therefore, another Show Cause Notice on 27.01.....
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....riff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table and subject to the relevant conditions, if any, specified in the corresponding entry in column (5) of the Table aforesaid. Explanation.- For the purposes of this notification, the rates specified in column (4) of the said Table are ad valorem rates, unless otherwise specified. Table S. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. (1) (2) (3) (4) (5) 1. 0402 91 10 0402 99 20 Condensed milk Nil - 2. 0902 Tea, including tea waste Nil - 3. 1108 12 00, 1108 14 00, or 1108 19 Tapioca Starch, Maize Star....
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.... - 27. 2106 90 30 Scented supari, where the retail sale price is declared on the package and such retail sale price does not exceed Re. 1 per package. Explanation. - "Retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale 8% - 28. 2106 Texturised Vegetable Proteins (Soya bari), and instant food mixes such as Pongal mix, Vadai mix, Pacoda mix, Payasam mix, Gulabjamun mix, RavaDosa mix, Idli mix, dosai mix, Murruku mix, and Kesari mix. 8% - 29. 2106 90 Sweetmeats (known as 'misthans' or 'mithai' or by any other name), namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, papad and jaljeera Nil - 30. 2106 90 99 Ready to eat packaged food 8% ....
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...., "mixtures", "Bhujia", "Chabena" or called by any other name. Such products remain classified in these sub-headings irresepective of the nature of their ingredients." 18. It is his submission that in this said goods specially included under Serial No. 37 of the said notification. Therefore, benefit there under is available to the appellant. 19. The Ld. Adjudicating Authority has given a contrary findings and has failed to appreciate that no exception has been provided nor any condition has been laid down under Sl. No. 37 or Sl. no 38 of the exemption provided under Sl. No. 37 could not be available in respect of the goods classifiable under under TSH210690 in the event they are cleared in sealed container/packages. 20. It is his submission that it is settled law that express language of notification has to be given its due effect and supposed object and purpose of exemption has to be derived from the language of the said exemption notification itself. To support this he relied on the decision of the Supreme Court in Gujarat State Fertilizer Company Vs. Collector of Central Excise 1997 (91) ELT Page 3 (SC). 21. He further submits that from the Tariff item 2106 it would ....