TaxTMI 
TaxTMI 
2003 (11) TMI 89
X X X X Extracts X X X X
X X X X Extracts X X X X
....(g) and 265 of the Constitution of India and contrary to Section 38B of the Central Excise Act, 1944, Section 83(r) of Standards of Weights and Measures Act, 1976, Rules 17 and 34(1)(b) of the Standards of Weights and Measurements (Packaged Commodities) Rules, 1977. 2. Petitioner firm is engaged in the manufacture of herbal hair dye which falls under Chapter sub-heading 3305.99 of Central Excise Tariff Act, 1985. Under Notification No. 20/99-C.E. (N.T.), dated 28-2-1999, herbal hair dye manufactured by the petitioner are packed in sachets of 8 gms in weight in Photo Protective Pouch and six such pouches were being packed in a Mono Carton. Since the net weight of the individual pouch did not exceed 10 gms, the petitioner was assessed on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... " . . . 5. In view of the above statutory requirement for declaration of retail sale price under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 for multi-piece packages, it is clarified that in respect of multi-piece packages of a commodity intended for retail sale and which are notified under Section 4A, they shall be assessed to excise duty under the provisions of Section 4A of Central Excise Act, 1944." 6. It is appropriate at this stage to notice the relevant statutory provisions. 7. Section 4A of the Central Excise Act is to the following effect :- " SECTION 4A. Valuation of excisable goods with reference to retail sale price. - (1) The Central Government may, by notification in the Official ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purposes of this section." 8. Section 83 of the Standards of Weights and Measures Act, 1976 contains the rule making power of the Central Government empowering the Central Government to make rules to carry out the provisions of the Act. Section 83(2) empowers the Central Government, without prejudice to the generality of the rule making power under Section 83(1), to make rules to provide for the manner of declaration of the contents of a package and specification of the unit of weight, measure or number in accordance with which the retail sale price shall be declared on the package. In accordance with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....certain packages. The relevant provision contained in Section 34 is to the following effect :- "34. Exemption in respect of certain packages. - (1) Nothing contained in these rules shall apply to any package containing a commodity if - (a) . . . (b) the net weight or measure of the commodity is ten grams or ten millilitres or less, if sold by weight or measure;" 11. The first and foremost contention of the petitioner is to the effect that since Rules have been framed under the Standards of Weights and Measures Act relating to packaged commodities, the Central Board of Excise and Customs lacks jurisdiction to issue any circular or notification in respect of matters covered under the Act or the Rules made thereun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulti-piece package has been defined under Rule 2(j) of the Rules, which is as follows :- "Multi piece" package containing 2 or more individually packaged or labelled pieces of the same commodities of identical quantities intended for retail sale, either in individual pieces or the package as a whole. Rule 17 itself requires that every multi piece package shall contain a declaration of number of individual pieces contained and the retail sale price of the multi piece package. The proviso makes it clear that where individual pieces contained in multi package or packaged are labelled separately and are capable of being sold separately, each piece shall bear declaration as to quantity and the retail sale price. 15. A perusa....