TaxTMI 
TaxTMI 
2025 (10) TMI 1128
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....n the meaning of Legal Metrology Act, 2009 (LM Act, for short). The second issue proposed in the above SCN, an alternate, on the premise that if the demand under Section 4A did not hold good then the plant-wise differential duty would be payable on account of discounts not passed on to the buyers at the point of sale under Section 4 (1) (b) of the Act. 2. The Appellant/Assessee appears to have filed its detailed replies on various dates which were considered during adjudication and the Commissioner, in the impugned order, has extracted some of the pleadings. The relevant recording as appear in the OIO are as under : '....The intelligence and subsequent investigation revealed - (i) Some Bias Tyres are inserted with a tube & flap and partially inflated and strapped at 3 locations around the tyre using plastic strip; (ii) Some of the tube tyres are cleared without any packaging as single unit and some tyres are inserted with a tube & flap, partially inflated and strapped at 3 locations around the tyre using a plastic strip; (iii) Some of the tubes sold in the retail market are packed in a polythene packing; (iv) Appellant/Assessee was pa....
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....of facts. Support in this regard has also been placed on the decision of Hon'ble Supreme Court in Radhasoami Satsang Saomi Bagh Vs CIT - 1992 (1) SCC 659 and the Hon'ble Delhi High Court in J.K. Synthetics Ltd. Vs UOI - 1981 (8) ELT 328 (Del.) 5. The Commissioner having reproduced most of the pleadings of the Appellant/Assessee, however, without answering some of the pleas, vide the impugned Order-in-Original has confirmed the proposed demands including interest at applicable rates and penalty. It is against this order that Appeal No. E/40616/2023 has been filed by the Assessee. 6. The Revenue has filed Appeal No. E/40226/2024 being aggrieved by the impugned order of the Ld. Adjudicating Authority (i) not confirming the differential duty with interest for the period 01.10.2013 to 30.06.2017 as against 01.04.2014 to 30.06.2017, (ii) not imposing higher penalty under Rule 25 of Central Excise Rules, 2002; and (iii) not imposing personal penalty under Rule 26 of Central Excise Rules, 2002. 7. Learned Senior Advocate Shri Joseph Kodianthara appearing for the Appellant/Assessee would contend that when there is no dispute as regards the method adopted ....
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.... packaged commodities exceeding 25 kgs. has also been deliberately ignored by the Commissioner in the impugned order and hence, the above two crucial aspects indicate that there was nothing that was suppressed, that too, with an intention to evade duty liability and hence, the Department has miserably failed to justify invoking the extended period of limitation. Hence, both on merits as well as on limitation the impugned order confirming the arbitrary demands raised without justification cannot be sustained. He would thus pray for setting aside the same and allowing Assessee's Appeal and for dismissing the Appeal filed by Revenue. 11. Per contra, ld. Special Counsel for the Revenue Shri Ayyam Perumal invited our attention particularly to para 21 of the impugned order wherein, the Original Authority has given a categorical finding as to the applicability of section 4A ibid. He would also rely on other specific findings in the impugned order both on merits as well as extended period of limitation, to contend that the demand in the OIO is very much in order and hence, would pray for dismissal of the Appeal of the Assessee and for allowing the Revenue's Appeal. 12. We have very c....
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....fferent retail sale prices are declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates. Pre-packed commodity as per LM Act reads thus: Legal Metrology Act "Pre-packed commodity" means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity. Rules Rules 2(g) "packer" means a person who, or a firm which pre-packs any commodity, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale whether wholesale or retail; Rules 2(h) "principal display panel", in relation to a package, means the total surface area of the package where the information required under these rules are to be given in the following manner, namely:- (i) all the information could be grouped together and given at one place; or (ii) the pre-printed information co....
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....a packages which are intended for retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein and includes the imported packages: Provided that for the purposes of this clause, the expression ultimate consumer shall not include industrial or institutional consumers: Rule 2-A Applicability of the Chapter: The provisions of this Chapter shall not apply to - (a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up-to 50 kg; and (b) Packaged commodities meant for industrial institutional consumers. Rule 3 - Chapter to apply to packages intended for retail sale - The provisions of this Chapter shall apply to packages intended for retail sales and the expression "packages", wherever it occurs in this Chapter, shall be construed accordingly. Definitions under both the Acts/Rules are pari materia, but it is also a fact that LMA does not at all deviate materially insofar as characteristic of 'commodity' is concerned. Therefore, mere denial as the earlier order was under SWM whereas the present case is under LMA without bringing on r....
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....a 6 of OIO dt. 28.02.2011 is of relevance and the same reads as under: "6. The assesse further submitted that the averments in para 3 of the SCNs were clearly untenable; that on the very issue of clearance in sets, SCNs had been issued earlier by the Adjudicating Authority and hence to state that the clearance in sets were done without the knowledge of the Department was therefore absolutely erroneous; that they had correctly declared the assessable value and paid duty under Section 4 and hence the attempt to invoke the extended period under the proviso to Section 11A(1) was patently unsustainable." [emphasis supplied by us] 15. Relevant findings in the OIO as could be seen from para 10 of OIO dt. 28.02.2011 onwards, are also considered by us, para 13 of the same however, reveals as under: "13. As per the documents on record, the activities carried out with reference to packing in these cases are that after manufacture of the tyre, the bought out tube is put inside the tyre, the flap which is also procured from outside is kept above the tube within the tyre, the tube is partly inflated and then a few polythene straps are put around the tyre with tube and fla....
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....d and assessed differently... Therefore, it is not understood as to why double standards were adopted...'. In fact, this was one of the allegations in the earlier SCN issued, perhaps relentlessly, by the Revenue. The findings at para 30 of the impugned OIO is therefore an attempt in vain, to defend the limitation. We would also now examine this issue in the context of relevant provisions under CEA. 20. Section 11A of the Central Excise Act, 1944 prescribes the modes of recovery of duty of excise and sub-section (4) is invokable 'where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e)...... ....' 21. Thus, the primary requirement is the short-levy or non-levy, for any of the reasons specified in clauses (a) to (e). Revenue has strangely adopted Section 11A(8) in the SCN on the pretext that the Hon'ble High Court '...had passed an interim injunction staying investigation proceedings ...... the period of stay of 09 months granted by the Hon'ble High Court....