Custom, Excise & Service Tax Tribunal
Nagpur vs Sony Polymers Pvt Ltd on 14 October, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: E/546/2007
CROSS-OBJECTION NO: E/CO-146/2007
[Arising out of Order-in-Appeal No: SVS/33/NGP-I/2007 dated 18th January 2007 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur]
For approval and signature:
Honble Shri M V Ravindran, Member (Judicial)
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
Yes
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Commissioner of Central Excise
Nagpur
Appellant
versus
Sony Polymers Pvt Ltd
Respondent
Appearance:
Shri N N Prabhudesai, Superintendent (AR) for the appellant Shri G L Deshpande, Advocate, for the respondent CORAM:
Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 14/10/2015 Date of decision: 15/04/2016 ORDER NO: ____________________________ Per: C J Mathew:
Revenue, aggrieved by order-in-appeal no. SVS/33/NGP-I/2007 dated 18th January 2007 of Commissioner of Central Excise & Customs (Appeals) Nagpur, seeks reversal of the decision of the first appellate authority to set aside the demand of tax from M/s Sony Polymers Pvt Ltd (Unit II). The dispute relates to demand of ` 2,87,485/- short-levied as duty on clearances of glue sticks and correction pens during June 2005. The assessee had discharged duty liability during that month by assessing the value of clearances under section 4 of Central Excise Act, 1944 which was considered to be incorrect as the said goods allegedly were required to conform to the Standards of Weights & Measures (Packaged Commodity) Rules, 1977. The respondent has filed Memorandum of Cross-objections questioning the legality of the grounds of appeal put forth by Revenue.
While assessment on the basis of transaction value is the norm for levy of duty of Central Excise, the special provision in section 4A, incorporated by Finance Act, 1997, is attracted for:
Section 4A. Valuation of excisable goods with reference to retail sale price. -
(1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply.
(2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette.
(3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods.
Explanation 1. - For the purposes of this section, "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.
Explanation 2. - Where on any excisable goods more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed to be the retail sale price for the purposes of this section. From this, the mechanics are unambiguously clear: goods that are required to carry the retail selling price in conformity with the above referred enactment and so notified as to render section 4A(2) applicable are to be assessed on the retail selling price after deducting the abatement provided in a valid notification issued under this section. The Standards of Weights and Measures Act, 1976 is concerned primarily with prescribing the standards of measurement to be complied with by manufacturers and packers and its enforcement thereof. Section 83 of the said Act, however, enables the Central Government to frame rules and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 have been notified for ensuring rights of consumers in relation to pre-packaged commodities. Central to the statutory instrument is the physical impossibility of ascertaining the contents and quantity of goods during the course of sale owing to it having been packaged out of sight of the ultimate consumer. Hence the emphasis on ultimate consumer and retail packing in prescribing the requirements.
2. The dispute revolves around the exclusion of the application of the Rules in:
34. Exemption in respect of certain packages (1) Nothing contained in these rules shall apply to any package containing a commodity if
(a) xxxxxxx
(b) the net weight or measure of the commodity is twenty grams or twenty millilitres or less, if sold by weight or measure Provided that the declaration in respect of maximum retail price and net quantity shall be declared on packages containing 10grams to 20grams or 10 ml to 20 ml.
3. The contention of the assessee in support of resort to section 4 of Central Excise Act, 1944 was that the packaged commodities did not contain more than ten grams and ten mililitres respectively and that they were not required to declare the retail selling price on the package and, therefore, not covered by the statutory conditions in section 4A(1) of Central Excise Act, 1944. The case of Revenue is that these were cleared from the factory of the assessee in multi-piece packages for which an additional set of prescriptions are laid down, viz., 17. Additional declarations to be made on multi-piece packages.- (1) Every multi-piece package shall bear thereon, in addition to the declaration required to be made under any other provision of these rules, a declaration of
(a) the number of individual pieces contained therein;
(b) the retail sale price of the multi-piece package As to what constitutes the package which requires declaration of the above details, the definition in Rule 2 (j) "multi-piece package means a package containing two or more individually packaged or labeled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole Illustration.- A package containing "5 toilet soap cake, net weight 20 g each, total net weight 100 g" is a multi-piece package articulates. The expression package acquires particular significance in these context but is not defined except in a reference in Rule 2, viz., (l) "pre-packed commodity" with its grammatical variations and cognate expressions, means .., and the expression "package", wherever it occurs, shall be construed as a package containing a pre-packed commodity With this background, we proceed to examine the impugned order and the grounds of appeal.
4. Glue is cleared in packs of 20 comprising 8 gram cylinders and correction fluid in pens of 8 millilitres and 10 millilitres capacity in packs of 20 and 10 pieces each. The original authority found that the sticks of glue containing 10 grams each are not within the ambit of the exemption from declaration of retail selling price in Rule 34 of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and that the larger package of 20 pieces were also required to conform to prescription in Rule 17 supra. Likewise, in relation to correction pens, it was held that the sale, being in numbers, is not covered by the exemption in Rule 34 supra which is restricted to goods sold by weight and volume. The first appellate authority, relying on the decision of the Tribunal in Swan Sweets Pvt Ltd & others v. Commissioner of Central Excise, Rajkot/Gwalior [2006 TIOL 229 (CESTAT-Mum)], controverted the finding of the lower authority by holding that these were wholesale packages and hence not required to carry retail selling price prescribed in Rule 17. The finding of the original authority that correction pens were sold by number was held to be untenable by the first appellate authority as the measurement unit referred to in the schedule to the Central Excise Tariff Act, 1985 is in kilograms.
5. Revenue has filed this appeal on the ground that, by issue of notification no. 13/2002-CE (NT) dated 1st March 2002, assessment of correction fluids and prepared glue was required to be effected, unquestionably, under section 4A as the exemption, if any, in subordinate legislation is not attracted unless the said notification itself enumerated the commodities eligible for exemption from application of section 4A of Central Excise Act, 1944. According to the reviewing authority, the impugned order is flawed in having invoked what it expresses as an extraneous ground. This, we find, is without rationale. Section 4A applies only when the Standards of Weights of Measures Act, 1976, or rules framed thereunder, prescribe requirement to declare retail selling price on the packages. As we have pointed out supra, the Act itself does not address the matter of packaged commodities but left it to executive wisdom to create and notify. The primacy accorded to the said Rules, thereby, is not questionable except when uninfluenced by informed consideration. It is also settled law that the application of section 4A of Central Excise Act, 1944 rests on two legs both of which are indispensable: requirements under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and notification under section 4A(1) of Central Excise Act, 1944. Therefore, we do not intend to linger further on this specious espousal. We also notice that another ground advocated in the appeal is equally demonstrative of lack of certainty in that, while referring to non-exclusivity of Standards of Weights & Measures Act, 1976 as law in force for invoking the enabling power under section 4A(1) of Central Excise Act, 1944, it is conspicuously silent on the other law that influences recourse to mechanism embodied in section 4A(2) of Central Excise Rules, 1944 in relation to the commodities in this dispute. Without any pretensions to mastery over the language, we must also confess to being befuddled by the concatenation of words in the review order that, presumably, presents itself as the second ground of appeal, viz., The Notification in definite terms has specified the commodities chargeable to duty on the basis their valuation as per Retail Sale Price (with specified percentage of abatement from RSP) irrespective of nature of packing of goods or variable quantity of goods packed in a unit of sale. The Commissioner (Appeals), Central Excise, Nagpur is therefore mistaken in passing order for assessment of captive product under 4 of Central Excise Act, 1944 which is specified in Notification No. 13/2002-CE(NT) for assessment on the basis of Retail Sale price with specified percentage of abatement from such Retail Sale price.
6. Learned Authorised Representative was as clueless as we are in deciphering the two sentences that the review authority considered to be of sufficient import. We may be forgiven for our lack of perspicacity which precludes us from a clearer interpretation than that any notification issued under section 4A(1) of Central Excise Act, 1944 does not need to garner support from a law other than the Central Excise Act, 1944 for validity as a mechanism for assessment. If we are wrong, we are amenable to rectification but, if we are not, it is further demonstration of lack of application of mind by the appropriate authority.
7. We, as the designated Tribunal to hear appeals that are subject only to appeal before the judicial organ established by the Constitution of India, cannot but be pained by the betrayal of ignorance amplified unmistakably in the third ground of appeal. It would appear that the reviewing authority labours under the impression that Rule 34 of Standard of Weights and Measures (Packaged Commodities) Rules, 1977 exempts certain products from the prescription in the principal act, i.e., Standards of Weights and Measures Act, 1976. That no provision of the said Act prescribes declaration on packaged commodities is apparently not within the knowledge of the reviewing authority which has made such an authoritative assertion. It would appear that the reviewing authority has convinced itself of the overriding supremacy of a notification issued under section 4A(1) of Central Excise Act, 1944 over the law framed by the supreme legislative body that grants powers to issue rules for protection of consumer rights. And holds that listing in a notification issued under section 4A(1) of Central Excise Rules, 1944 suffices for retail sale price-based assessment. Compounding this elegant display of jurisprudential knowledge, the reviewing authority has gone on to cite an unsustainable proposition that exemption from a prescription intended to protect rights of consumers cannot be invoked without provision for such exemption in Central Excise Act, 1944. We are not certain if such peremptory dismissal of legislative jurisdiction has any basis in law. We, with our restricted status, knowledge and exposure, would not like to be presumptuous enough to elaborate on the propriety thereof; suffice it to say, that we do not find it tenable.
8. To cap this erudite enumeration of the flaws in the impugned order and applauding of the sagacity of the original authority, the grounds of appeal have faulted the assessee for not challenging the constitutional validity of notification no. 13/2002-CE (NT) dated 1st March 2002. When the issue is one of applicability of one of the two alternative modes of valuation prescribed in the statute and the claim for exclusion of one is on the ground of exemption provided in law, it should have been apparent that the assessee has no need to challenge the generality of provision if eligible for the specificity of exclusion.
9. We find that none of the grounds of appeal are legally tenable or logically appealing. Review under section 35B of Central Excise Act, 1944 is a power conferred upon high authorities to call for, scrutinize and direct appeal against orders that do not appear to be legal and proper. Impliedly, all orders are to be subject to such ascertainment but, in practice, appeals are filed only against orders that have been decided by the first appellate authority against Revenue. Recourse to the jurisdiction of the Tribunal is, thereby, thrust upon an assessee whose contentions have been upheld by Commissioner (Appeal) which is a senior position in the tax hierarchy. Hence, the conferment of powers of review upon an equally senior level whose wisdom is presumed to be doubled by sheer force of numbers. Half-hearted review or abdication of the power in favour of levels deemed to be incompetent on account of experience and maturity is gross contravention of the responsibility that accompanies conferment of power. For Revenue, such appeals do not cause incremental burden but they do impose additional costs on the assessee even when the matter has been decided in their favour. This power to appeal is, therefore, to be exercised with appropriate sagacity and consideration. Hectoring by us may not be visited with appropriate course correction. That consummation can be achieved only by the supervisory authorities. We do hope that the Central Board of Excise & Customs does take note of dereliction of responsibility on the part of its senior functionaries in the discharge of their statutory duties that load such burden on the assessee.
10. However, we cannot be oblivious of our obligation to adjudge rival submissions especially when efforts have been invested by the learned Authorized Representative to argue the matter before us. The issue is also one that may impede smooth business operations if allowed to remain unresolved. We, therefore, examine the statutory provisions and the binding precedents rendered on the subject.
11. Learned Authorised Representative places reliance on Varnica Herbs v. C.B.E & C, New Delhi [2004 (163) ELT 160 (Mad.)], Arora Products v. Commissioner of Central Excise [2012 (276) ELT 0077 (Tri-Del.), and Whirlpool of India Ltd v. Union of India & Ors [2007 (218) 0167 (SC)]. Learned Counsel for respondent has cited Commissioner of Central Excise v. Urison Cosmetics Ltd [2006-TIOL-354-CESTAT-MUM-LB], Pidilite Industries Ltd v. Commissioner of Customs (Import), Nhava Sheva [2014 (314) ELT 479 (Tri-Mumbai)], Commissioner of Central Excise, Chennai v. Anabond Ltd [2009 (234) ELT 481 (Tri-Chennai), Commissioner of Central Excise, Mumbai VI v. Charishma Cosmetics Pvt Ltd [2006-TIOL-726-CESTAT-MUM], Aero Pharma Pvt Ltd & Ors v. Commissioner of Central Excise [2006-TIOL-1186-CESTAT-MUM], Bharat Cosmetics v. Commissioner of Central Excise, Thane [2007-TIOL-580-CESTAT-MUM] and Venkateswara Cans Pvt Ltd v. Commissioner of Central Excise, Mumbai [2015 (320) ELT 651 (Tri-Mumbai)]
12. The statutory position is unambiguous. Glue sticks and correction pens are covered by a notification issued under section 4A of Central Excise Act, 1944 if subject to prescriptions under Standards of Weights and Measures (Packaged Commodities) Rules, 1977 which is the instrument governing declaration of retail sale price. Rule 34 of the said Rules exempts packages that contain specified weights or measures of commodities from having to make such declarations. However, Rule 17 requires certain additional declarations on certain types of packaging.
13. We would like to observe that the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 have been enacted for protection of consumer rights. It was found convenient to dovetail assessment of excise duty with this existing statutory prescription; nevertheless, the dovetailing notwithstanding, it must be conceded that the expressions may not have the same contextual meaning as assigned or interpreted in tax legislation because the objects and reasons are not, necessarily, congruent.
14. Manufacturers, in the natural order of activities, undertake production and utilise channels for distribution of the products. A proprietorial interest is implicit in packaged products and manufacturers, generally, tend to clear goods that are intended for retail market in packages deliverable as such to customers, whether directly or through a channel of distribution. The consumer does not have the opportunity to use the senses to grade the goods against the wish-list in the mind. Nor is it possible to verify the measure of such pre-packaged commodities. The Standards of Weights and Measures Act, 1976 and the rules notified thereunder are intended to ensure that the consumer is not deluded into purchasing goods that was not intended to be. The prescription of retail sale price ensures that the retailer cannot take advantage of local demand-supply gap to boost prices. Considering the nature and intent of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977, the lack the specificity that a taxation statute is required to possess is not surprising. The definitions that distinguish the packaging to which the prescriptions apply should be viewed in that context. The objective being the protection of consumer interests, the prescriptions under the Rules are designed for declaration on the packing intended for delivery as such to the ultimate user. The manufacturer is not required to conform to the prescriptions on other packaging intended for convenience of handling.
15. The pivotal expression in the definitions is intended for. The intent is not manifest in a declaration but the intent of the manufacturer is implicit in the compliance with the prescriptions. It is for that reason that the statute itself contains the circumstances in which penalties can be visited upon the handlers if the prescriptions are flouted on packages displayed for sale by retailers. Likewise, Central Excise Act, 1944 has, since 1999, provided for penal consequence in the event of non-compliance and, since 2003, provided for re-assessment. The State cannot, except under health and safety laws, dictate the manner in which goods are to be delivered or received by the customer but it has prescribed the information content to be declared if the goods are delivered to the customer as pre-packaged with the consumer as the target of marketing. The gap between intent and the outcome is bridged by enforcement at the last point of sale. Other than display on the retail shelf, intent of retail sale is ascertainable only by conforming with prescriptions of statute governing retail sale. The survival of the manufacturer as producer of retail goods finds sustenance in compliance with the prescriptions. Therefore, the mandate of declaration is confined to packaging that carry the declaration and it is an offence if that intent is suppressed by non-declaration on the package. Multi-packages, too, are identifiable by the intent manifested in declaration on the package. Tax authorities are not empowered to dictate or presume intention for retail sale. Nor can the prescription in Rules be insisted upon as a strategy to levy a higher amount of tax.
16. The definitions also make it clear that the manner in which the consumer chooses to buy the product is not germane to determination of applicability of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Retail packages do not pose the problem of applicability of Rules. Except to the extent that they are less than the stipulated weight or measure in Rule 34, the intent is apparent in marking of retail sale price and other information on the package. The definition of wholesale package in Rule 2(x) of Standards of Weights and Measures (Packaged Commodity) Rules, 1977 and Chapter IV of the Rules distinguish the intent of the manufacturer by the exclusion of retail sale price on the package. This confirms our view that packages containing more than one piece or package may be for retail or whole-sale distribution and the intent for retail distribution in the secondary packing is made apparent by declaring the retail sale price thereon.
17. The Rules supra were not notified with taxation as an objective. It predates the incorporation of section 4A in Central Excise Act, 1944. It is the manufacturer who is obliged under Central Excise Act, 1944 to discharge the duty liability and a harmonious construction of section 4A of Central Excise Act, 1944 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 crystallises the assessment method upon declaring retail sale price on an package cleared from the factory except when the provisions Rule 2A or Rule 34 is attracted.
18. Having perused the records in detail, we notice that there is no finding that the secondary packing containing the glue sticks and correction pens had retail selling price declared on them. Nor is there any allegation that the said goods were displayed for sale to the ultimate consumer in the secondary packing. Consequently, the packages are not multi-piece packages as it was, apparently, not the intent of the manufacturer to sell the goods to the ultimate consumer in the secondary packing. And as retail selling price is not declared on the secondary packages, section 4A of Central Excise Act, 1944 is not applicable. The pieces inside the secondary packing are, apparently, intended for sale only as individual pieces at the last point of sale to the ultimate consumer.
19. These individual pieces did have the retail sale price declared on them; however, the net weight or measure contained in each of the sticks and pens do not exceed 10 grams and 10 mililitres respectively. They are, therefore, covered by the exception in Rule 34 (b) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and declaration on the piece is merely voluntary. The original authority had proceeded on the ground that correction pens are never bought by weight by a customer but is always perceived as purchasable only in numbers. That may be so from the point of view of the consumer but, in accordance with our discussion of this aspect supra, that viewpoint is not relevant to the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The exemption provision in Rule 34 does expressly qualify the threshold of grammage and mililitrage with the clause if sold by weight or measure. The original authority has contrived to fit correction pens within the exclusion of numbers from the exemption provision with his theory of consumer behaviour. This is flawed reasoning. Pre-packaged commodities are, undoubtedly, bought as packages but that does not render the declaration of weight or measure on the package to be irrelevant. If it were irrelevant, there would no reason for such elaborate prescription of data, including weight, on the packaging in the Rules and Rule 34 also would be otiose. The original authority appears to have confused the outer packing in the shape of a pen, which is merely the container, with the material inside. Therefore, the sticks and pens containing commodities that are below the threshold prescribed for compliance with the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are beyond the ambit of section 4A of Central Excise Act, 1944.
20. In Varnica Herbs v C.B.E.&C., New Delhi [2004(163)ELT 160 (Mad)], relied upon to canvass the appeal of Revenue, the Honble High Court of Madras was resolving a dispute relating to application of MRP-based valuation of herbal hair dye contained in photo protective pouches with a net weight of 8 gms with six such pouches packed in a mono-carton. The issue before the Honble High Court was the validity of circular no. 492/58/99-CX dated 2nd November 2009 which directed that 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 a commodity intended for retail sale and which are notified under Section 4A, they shall be assessed to excise under the provisions of Section 4A of Central Excise Act, 1944 Taking note of the definition of retail package and multi-piece package in the Rules as well as the additional declarations required to be made on multi-piece packages as per Rule 17 and the exemption to application of the said Rules in Rule 34, the Honble High Court decided that 15. A perusal of these provisions makes it clear that articles kept in separate pouches by the petitioner can be termed as multi-piece packages and such products can be sold individually in single piece or mono-carton of six pouches. The contention of the petitioner that exemption under Rule 34 would be applicable is not acceptable. Even though the net weight is less than 10 grams, it is evident that article is not intended to be sold either by weight or measure as contemplated under Rule 34 (b). The contention that the clarification issued by the respondent No.1 has the effect of whittling down the exemption granted under Section 34 is not all acceptable. Further reliance was placed on the decision of the Tribunal in Arora Product v. Commissioner of Central Excise, Jaipur-II [2012 (276) ELT 77 (Tri-Del)] which distinguished the facts in the case from that of Commissioner of Central Excise v Kraftech Products Inc. [2008 (224) ELT 504 (SC)] as the weight of the multi-pack in re Kraftech Products Inc. was less than the threshold in Rule 34 and that of the Tribunal in Swan Sweets Pvt Ltd v Commissioner of Central Excise [2006 (198) ELT 565 (Tri-Mumbai)] as retail selling price was not marked on the secondary package in re Swan Sweets Ltd. In re Arora Product, the Tribunal had come to the conclusion of taxability of the secondary packing by distinguishing the facts from the prevailing decision of the Honble Supreme Court which had discountenanced the argument that packaged goods were sold by numbers and from the decision of the Larger Bench of the Tribunal that secondary packing was not intended for retail sale.
21. The reliance on the decision of the Tribunal in re Arora Product would not find sustenance in the present case as that was specifically examining whether a multi-piece package should also be subject to exemption under Rule 34 as decided in re Kraftech Products Inc which is not an issue in the present despite as the clearance is not in multi-piece package but in whole sale package. Likewise, the secondary packing in the present dispute does not declare retail selling price in contradistinction with the secondary packing of goods cleared by M/s Arora Products. The decision of the Honble High Court of Madras in re Varnica Herbs does not advance the cause of Revenue owing to the judgment of the Honble Supreme Court in Commissioner of Central Excise v. Kraftech Products Inc [2008 (224) ELT 504 (SC)] (extracted in re Arora Product) holding that:
15..
23.. The illustration appended to Rule 2(j) bring out clearer picture. It states that the combined net weight shall be taken into consideration for the purposes mentioned therein. After combined net weight is taken into consideration for the applicability of the Rules, there is no reason as to why the said purpose shall not be considered to be a relevant factor for applying the exemption provision. Assuming that Rule 2(j) was otherwise vague or unambiguous, illustration appended thereto brings out the true meaning and purport thereof. The reasoning adopted by the Madras High Court in Varnica Herbs (supra) does not appeal to us.
It was rendered per incuriam. It was held to be so in Urison Cosmetics Ltd. (supra) by a Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal. We agree with the said opinion of the Tribunal.
22. The decision of the Tribunal in re Hindustan Unilever Ltd., relating to import of lipsticks which were presented for assessment by the importer as pieces for clearance, will not find application in the present dispute where weight is specifically declared on the individual packages contained in the secondary packing. This order had also been set aside by the Honble High Court of Bombay. Revenue has attempted to clothe the contention of the reviewing authority, that notification under section 4A(1) of Central Excise Act, 1944 operates independently for assessment under the special provision, with legality by drawing upon the decision of the Honble Supreme Court in Whirlpool of India Ltd v Union of India and others [2007 (218) ELT 0167 (SC)]. We are unable to grant approval to this attempt as that decision was rendered while determining the primary condition for rendering any goods to be packaged commodity. That the goods in this dispute are packaged is not in question. The Tribunal in re Urison Cosmetics Ltd [2006 (198) ELT 508 (Tribunal-LB), which found approval of the Honble Supreme Court, has relied upon the schedule to the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 to hold that commodities that are required by the provisions of the said Rules to be sold by weight or measure are exempted from declaration of retail selling price on the package and, therefore, not liable to assessed under section 4A(2) of Central Excise Act, 1944. The Tribunal in Commissioner of Central Excise, Chennai v Anabond Ltd [2009 (234) ELT 481 (Tri-Chennai)] and Pidlite Industries Ltd v. Commissioner of Customs (Import), Nhava Sheva [2014 (314) ELT 479 (Tri-Mumbai)] has also ruled similarly.
23. Having considered the argument of Revenue that the secondary packing containing individual packaged commodities are multi-piece packing and found them to be not so but packing not intended for sale to the ultimate consumer and having accepted the claim for exemption from ambit of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 owing to the individual packages being less than the prescribed threshold, we uphold the impugned order and dismiss the appeal of Revenue. Cross-objection is also disposed off.
(Pronounced in Court on 15/04/2016) (M V Ravindran) Member (Judicial) (C J Mathew) Member (Technical) */as 24