Custom, Excise & Service Tax Tribunal
Jagannath Dalip Singh vs Cce & St, Ghaziabad on 4 January, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
E/870/12-EX(DB)
Arising out of O/A No.02-CE/GZB/2012 dated 17.01.2012 passed by Commissioner (Appeals), Customs, Central Excise & Service Tax, Ghaziabad.
Jagannath Dalip Singh
APPELLANT(S) VERSUS
CCE & ST, Ghaziabad
RESPONDENT (S)
APPEARANCE Absent on call for the Appellant (s) Shri Pawan Kumar Singh (Supdt.)(A.R.) for the Revenue CORAM:
MRS. ARCHANA WADHWA, HONBLE(JUDICIAL) SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) DATE OF HEARING : 04.01.2018 DATE OF DECISION : 24.01.2018 FINAL ORDER NO.70267/2018 Per Mrs.Archana Wadhwa :
On matter being called, neither anybody appeared, nor is there any adjournment request. Accordingly, we have gone through the impugned order and have heard the ld.AR appearing for the Revenue.
2. As per facts on record, appellant is engaged in the manufacture of branded chewing tobacco Mor-chaap which is sold in the market through various dealers. The appellant is clearing chewing tobacco in puches of less than 10 gms. which are further packed in larger packs containing more than one pouch. The appellant during the relevant period was clearing the goods on payment of excise duty in terms of Section 4 of the Central Excise Act, 1944. The Department, after conducting investigations and recording statements entertained a view that since multi packs contained more than 10 gms. of chewing tobacco, excise duty was payable in terms of Section 4A of the Act.
3. Accordingly, show cause notice was issued for confirmation of demand, as per valuation in terms of section 4A of Central Excise act proposing confirmation of duty amounting to Rs.16,62,666/-. Show cause notice also proposed to impose penalty. The appellant contested the show cause notice on the premise that larger packs were made only for the sake of convenience for delivery of the goods to various dealers, otherwise, those were not meant for retail sale. The retail packets being of 6.0 gms and 7.5 gms were exempted from marking MRP, in terms of rule 34 of the standard of Weights of Measures (PC) Rules and as such would not be covered by section 4A of The C. Ex Act. They also relied upon various decisions.
4. Adjudicating authority after hearing the parties confirmed the duty demand raised vide show cause notice with interest and imposed equal amount of penalty. Appeal preferred by the appellant against the order in original was dismissed vide impugned order.
5. The short issue involved in this case is whether the larger packs of small pouches were meant for retails sale or not. We note that this issue was considered by the Tribunal in the matter of Milap Zarda Udyog vs. CCE, Jaipur I and in the said matter vide final order No.A/812-813/2012-Ex/(DB), the Tribunal after taking note of the judgement of Supreme Court in the matter of C.CE.., Vapi vs. Kraftech Products 2008 (224) ELT 504 (SC) had decided the issue in favour of the appellant. In the said case of Kraftech Products, the Honble Supreme Court observed that hair dye pack in pouches each contained 3 gms would be assessable to duty under section 4 of the central excise act, inasmuch as the intention of the manufacturer is to sell the commodity by weight. In each case the provisions of Rule 34 of standards of Weights and Measure (Package Commodity) rules, 1977 are not applicable as the net weight of the commodity sold by the assessee is 10 gms or less. It was further observed that only because a package is a multi-piece package, it cannot be taken out of umbrage by exemption clause contained in rule 34 and section 4A of Central Excise act, 1944 would be not applicable.
6. Inasmuch as the issue stands decided by the above decision of the Hon;ble Supreme Court, in the identical set of facts and circumstances, we find no justifiable reasons to uphold the impugned order of the lower authorities. Admittedly the appellant was manufacturing pouches less than 10 gms and the said pouches were further being packed in a big packet for the purpose of transportation, the assessment under section 4A of Central Excise act is ruled out. Accordingly we set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Pronounced in the open court on 24.01.2018.)
SD/ SD/
(ANIL G. SHAKKARWAR) (ARCHANA WADHWA)
MEMBER(TECHNICAL) MEMBER (JUDICIAL)
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E/870/12