Customs, Excise and Gold Tribunal - Delhi
Cce, Delhi-Ii vs Smithkline Beecham Consumer Helth Care ... on 27 June, 2001
Equivalent citations: 2001(76)ECC669, 2001(133)ELT717(TRI-DEL)
ORDER
Jyoti Balasundaram
1. For reasons recorded below we first dispose of the stay application filed by the Revenue by rejecting the same, since the issue in the appeal has since been decided in favour of the assessee/respondent by the Larger Bench of the Tribunal in the case of Goa Bottling Co. Ltd. vs. CCE, Goa 2001 (42) RLT 586 and proceeded to decide the appeal itself with the consent of both sides.
2. Assessees herein are engaged in the activity of repacking of malted food such as Horlicks, Book etc. classifiable under chapter heading 1901 of the Schedule to the Central Excise Tariff Act, 1985. Duty is paid on the basis of Maximum Retail Price (MRP) as these products are covered under Section 4A of the Central Excise Act. Respondents sell the repacked Horlicks in different regions. The goods are stock transferred from the repacking stations to various Depots on payment of duty and sold from the Depots. However, on each packet only one MRP is mentioned. MRP of Horlicks packs sold in different regions are different for different regions. The price declarations under Rule 173C of the Central Excise Rules were filed indicating different MRP for South and Eastern Zones and North West Zones. Department issued a show cause notice dated 7.1.2000 proposing recovery of duty of Rs. 29,43,406 under section 11A of the Central Excise Rules, 1944 on the ground that since the respondents are having different MRPs in different regions, all the clearances from the packing stations have to be assessed on the basis of the highest MRP declared by the respondents. The notice also proposed to impose penalty under section 173Q of the Rules. The adjudicating authority confirmed the duty demand and imposed a penalty of Rs. 6 Lacs by order dated 27.6.2000; this order was appealed against and the Commissioner (Appeals) vide impugned order allowed the respondents appeal following the Larger Bench decision cited supra. Hence this appeal by the Revenue.
3. It is not disputed that there is only one MRP mentioned on the container/packs meant for a particular region. Therefore, the decision of the Larger Bench of the Tribunal in which it has been held that if a container or packet carried one retail price only, it is to be assessed on the basis of that price and it is only when there is more than one MRP on the same container/packet that the maximum of MRP has to be taken for assessment as per Explanation 2 to Section 4A of the Act. The Larger Bench decision applies on all fours to the present case and hence following the same we uphold the impugned order and reject the appeal.