Custom, Excise & Service Tax Tribunal
M/S. The Central Arecanut & Cocoa ... vs Cce, Mangalore on 12 June, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:12/06/2012
Date of decision:12/06/2012
Appeal No.E/1216/2004
(Arising out of Order-in-Appeal No.376/2004-CE dt. 08/09/2004 passed by CCE(Appeals), Mangalore)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. M. Veeraiyan, 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?
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
M/s. The Central Arecanut & Cocoa Marketing and Processing Co-operative Ltd.
..Appellant(s)
Vs.
CCE, Mangalore
..Respondent(s)
Appearance Ms. L. Maithili, Advocate for the appellant. Mr. R.K. Singla, Commissioner(AR) for the Revenue.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. M. Veeraiyan, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] On a perusal of the records and hearing both sides, we note that the issue arising for consideration is whether the goods cleared by the appellant during the period of dispute should be assessed to duty under Section 4 or under Section 4A of the Central Excise Act. The subject goods is Chocolate Eclairs each piece weighing 5.5 gms, packed in 90/180 pieces in one pouch totally weighing 500gms/1000gms. The authorities below considered these pouches containing Eclairs as multi-piece packages and accordingly chose to assess them to duty under Section 4A of the Act. The assessee objected to the MRP based assessment and wanted the goods to be assessed on transaction value under Section 4 of the Act. An identical issue was considered in the assessees own case by a co-ordinate Bench and was decided in their favour vide Central Arecanut & Cocoa Marketing and Processing Co-op. Ltd. vs. CCE, Mangalore [2008(226) ELT 369 (Tri. Chennai)]. A civil appeal filed by the Department against the cited decision was dismissed by the Honble Supreme Court vide 2008(232) ELT A107(SC). The learned counsel for the appellant has also referred to the Honble Supreme Courts judgment in CCE, Rajkot vs. Makson Confectionery Pvt. Ltd. [2010-TIOL-72-SC-CX] wherein the decision of the apex court reported in 2008(232) ELT A107(SC) was followed and the Tribunals decision in the case of Swan Sweets Ltd. vs. Commissioner [2006-TIOL-229-CESTAT-MUM], which was followed in the present appellants earlier case reported at 2008(226) ELT 369 (Tri. Chennai) was upheld.
2. In view of the cited case law, which squarely covers the present issue in favour of the assessee, we set aside the impugned order and allow this appeal with consequential relief to the appellant. (Dictated and pronounced in open court) (M. VEERAIYAN) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 3