Custom, Excise & Service Tax Tribunal
General Mills India Pvt. Ltd. vs Commissioner Of Central Excise And ... on 20 February, 2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
EXCISE APPEAL NO: 89197 OF 2013
[Arising out of Order-in-Original No: 26/CEX/2013 dated 12th September 2013
passed by the Commissioner of Central Excise, Customs & Service Tax, Nashik.]
General Mills India Pvt Ltd
F-11 MIDC, Malegaon, Sinnar, Dist: Nashik - 422039 ... Appellant
versus
Commissioner of Central Excise, Customs & Service Tax
Annex Building, RG Gadkari Chowk, Old Agra Road
Nashik - 422 002 ...Respondent
APPEARANCE:
Shri Rajesh Ostwal, Advocate and Ms Hanisha Jatania, Chartered Accountant for the appellant Shri Sunil Kumar Katiyar, Assistant Commissioner (AR) for the respondent CORAM:
HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) HON'BLE MR AJAY SHARMA, MEMBER (JUDICIAL) FINAL ORDER NO: 85108/2024 DATE OF HEARING: 30/08/2023 DATE OF DECISION: 20/02/2024 PER: C J MATHEW In this appeal of M/s General Mills India Pvt Ltd, against order1 1 [order-in-original no. 26/CEX/2013 dated 12th September 2013] E/89197/2013 2 of Commissioner of Central Excise, Customs and Service Tax, Nashik, the grievance, stemming from fastening recovery of ₹ 96,35,073 under section 11A of Central Excise Act, 1944, along with applicable interest under section 11AB of Central Excise Act, 1944, for the period from February 2008 to January 2013 and imposition of penalty of ₹ 71,24,488 under section 11AC of Central Excise Act, 1944, is about the determination by tax authorities that, notwithstanding packages of 'cake mixes' manufactured by them having been affixed with 'retail sale price (RSP)', valuation for assessment to duty would have to be in accordance with section 4 of Central Excise Act, 1944 instead of resort to section 4A of Central Excise Act, 1944 on which levy had been discharged by them.
2. The appellant is in the business of manufacturing 'cake mixes' and 'bakery mixes' for supply to distributors as well as, and not infrequently, to bakeries directly. These products, statutorily required to comply with the prescription in Standards of Weights and Measures (Packaged Commodities) Rules, 1977, notified under the authority of The Standard Weights and Measurement Act, 1977 (and now of Legal Metrology (Packaged Commodities) Rules, 2011, notified under the authority of Legal Metrology Act, 2009) which, inter alia, included 'retail sale price (RSP)' on packages, were also covered by notification no. 49/2008-CE (NT) dated 24th December 2008 (at serial no. 9) issued under the authority of section 4A of Central Excise Act, 1944, for resort E/89197/2013 3 as alternative to transaction value. The central excise authorities, taking note that the contents of declaration on the package also incorporated 'not for retail sale', initiated proceedings for recovery of differential duty by resort to 'transaction value' specified by section 4 of Central Excise Act, 1944.
3. It is the contention of the appellant that, even if the scheme of valuation as proposed by tax authorities were to be adopted, differential duty would arise only in relation to the clearances effected directly to bakeries as sale, other than through retail, has not been established in the impugned order and, therefore, and should have been limited to ₹ 3,11,442 which they had made good during the investigations. According to Learned Counsel for the appellant, harmonious reading of section 4A of Central Excise Act, 1944 with the exclusion afforded by rule 2A of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (and rule 3 of Packaged Commodities Rules, 2011) leaves no scope for ambiguity that section 4 of Central Excise Act, 1944 may be resorted to only in relation to clearances effected to such as conform to '(b) "industrial consumer" means those consumers who buy packaged commodities directly from the manufacturer/packers for using the products in their industry for production, etc.' in the Rules supra.
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4. It was also contended that the final disposition by their distributors would not be known at the time of clearance and that implication of channelizing of the impugned goods into the 'distributor stream' is concurrent exclusion from sale to 'industrial consumer', which, being exception to mandate of affixing of details prescribed by the extant Rules, cannot be reversed merely from not having availed such privilege. Reliance was placed on the decision of the Hon'ble High Court of Bombay in Larsen and Toubro v. Union of India [2012 (275) ELT 153 (Bom)] which distinguished the exceptions referred to supra. It was pointed out that the distinction drawn by the Tribunal, too, in HPL Electric & Power Ltd v. Commissioner of Central Excise [2018 (12) GSTL 36 (T)] stood affirmed by the Hon'ble Supreme Court upon dismissal of appeal of Revenue. According to him, the scope of the exception had also been determined by the Tribunal in Kenda Farben India Pvt Ltd v. Commissioner of Customs [2019 (8) TMI 1021- CESTAT ALLAHABAD]. It is further submitted that the reliance placed by the adjudicating authority on a decision of the Hon'ble High Court of Karnataka was inappropriate in view of a contrary decision of the jurisdictional High Court in their favour. It was pointed out that the amendment, effected by notification dated 14th May 2015, in '(bb) "industrial consumer" means the consumer who buys packaged commodities directly from the manufacturer or from an importer or from wholesale dealer for use by that industry and the package shall have declaration 'not for retail sale';' E/89197/2013 5 in rule 2 of Legal Metrology (Packaged Commodity) Rules, 2011 could only have prospective effect and, impliedly, excluded 'distributors' from such category. Reliance was placed on the decision of the Tribunal in Top Victory Investments (P) Ltd v. Commissioner of Customs, Trichy [2016 (336) ELT 345 (T)]. It was also contended that declaration on package that goods were 'not for retail sale' did not, of itself, exclude it from coverage as 'retail package' in the absence of such presumption in law. It was submitted that allegation by the tax authorities could not be fastened onto such goods as had been sold directly to bakeries and, with duty liability thereon having been discharged, inclusion of ₹ 3,11,442 in the impugned order for recovery was incorrect.
5. On behalf of respondent-Commissioner, Learned Authorized Representative, besides relying upon decisions cited in the impugned order, took us through the findings that drew upon the purpose of the Legal Metrology Act, 2009 along with Legal Metrology (Packaged Commodities) Rules, 2011, as well as the corresponding provisions in the substituted Act and Rules, and referred to those specific exceptions that excluded goods cleared by the appellant from the prescriptions which were the fount of authority to notify goods to which alternative value would apply. He urged that the decision in Ewac Alloys Ltd v. Union of India [2012 (275) ELT 193 (Kar)] be followed and, relying upon the decision of the Hon'ble Supreme Court in Jayanti Food Processing (P) Ltd v. Commissioner of Central Excise, Rajasthan E/89197/2013 6 [2007 (215) ELT 327 (SC)] which, according to him, has settled the law relating to the exception stipulated in the Rules, he submitted that exclusion of the class of consumers spelt out therein is beyond question. He urged that the intent of the manufacturer, manifested by the bar on retail sale, which sufficed to evince lack of coverage under 'retail sale price' regime should not be overlooked. He further argued that bakers were, in any case, not final consumers but producers of cakes and bakes that were sold to consumers.
6. From the records and oral submissions, certain undisputed facts emerge. The appellant had been manufacturing 'cake mix' and 'bakery mix' in packages which, by and large, found its market among bakeries who were procuring these, mostly, through distributor network and some directly. The goods, having been incorporated in notification no. 49/2008-CE(NT) dated 24th December 2008, were being cleared by recourse to 'retail sale price' assessment mandated by section 4A of Central Excise Act, 1944. The rival stands posit that the intent of the law relating to such assessment has been incorrectly perceived inasmuch as the extent of reach of the law has been misconstrued. Inherent in the dispute is common ground that such products if sold for home use would be assessed within the ambit of 'retail sale price' assessment. No exercise for ascertainment of extent of such consumption was undertaken and that is not the spark for the proceedings. Indeed, the contours of the controversy commence and E/89197/2013 7 end at the manufacturing facility along with the intent, of the appellant; in any case, it is settled law that breach of 'retail sale price' conditions do not warrant remedy outside section 4A of Central Excise Act, 1944. We are required to resolve the dispute over the scope of an implied exception among goods notified for assessment under section 4A of Central Excise Act, 1944 for charging duty by the default valuation in the light of intent of appellant to forestall retail sale while, in circumstances of not seeking to appeal to preferences of the ultimate consumer, printing 'retail sale price' on the packages. The answer lies in the space between the empowerment by section 4A(1) of Central Excise Act, 1944 and the effect of the machinery provisions of section 4A(2) of Central Excise Act, 1944 with its limited role for the Central Government, i.e., to notify eligible abatement from 'retail sale price', for proximity with principle underlying levy on manufacture.
7. It is also on record that, during the course of the proceedings, the assessee was inclined to concede that 'direct sales' of theirs merited assessment urged by central excise authorities and offered to discharge the differential duty liability on these. In such context, we take note that, on the finding that the impugned goods are sold entirely to 'industrial consumers', and thereby excepted from the mandate of details under Legal Metrology Act, 2009, as also the predecessor statute, upon which 'retail sale price' assessment was predicated, it was held in the impugned order that the 'transaction value', which, E/89197/2013 8 admittedly, was the price at which the goods were sold to the distributors, be the assessable value for the disputed period. It is seen, too, that the adjudicating authority has placed emphasis on the Standards of Weights & Measures Act, 1977 and Legal Metrology Act, 2009 having been legislated for protection of the 'ultimate consumer', but not 'industrial consumers', owing to which the touchstone, at the threshold, for obligations under the consumer protection law cannot be extended to packages not intended for retail sale by the manufacturer. In effect, the propositions in the impugned order are that bakeries are not consumers and that central excise jurisdiction was enabled to go beyond the notification under section 4A(1) of Central Excise Act, 1944 to ascertain, on the facts of each clearance, requirement of declaring 'retail sale price' in furtherance of consumer protection.
8. The demand for the disputed period straddles two governing enactments by reference to which levy of duties of central excise on 'retail sale price', less permitted abatement, was enabled. Till the notification of Legal Metrology (Packaged Commodities) Rules, 2011 with effect from 1st April 2011, Standards of Weights and Measures (Packaged Commodities) Rules, 1977 , issued under the authority of The Standards of Weights and Measures Act, 1976, was in force even after the parent statute was substituted by the Legal Metrology Act, 2009. Both the laws have undergone streamlining and consolidation through amendments as did the respective Rules framed thereunder.
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9. The scheme of legislation differed only in some particulars but it is worth noting that the earlier of the two had been in force for very long before it was brought to bear on valuation for assessment to central excise duties. It may, therefore, be gainsaid that interpretation of the 'other law' cannot be premised on having been designed for collection of tax. Consequently, we cannot find ourselves in agreement with '4.5. It is astounding that M/s. GMIPL assessed their products under Section 4A of the Central Excise Act, 1944 stressing upon the- requirement of declaration of retail sale price under Packaged Commodities Rules, despite knowing the fact that the goods were intended for sale in bulk to bakeries for industrial purposes, and not to the ultimate consumer in retail. It is interesting to know that the product viz. Cake Mixes / Bakery Mixes in packaged form of 4x 5 Kgs. has not completed the entire journey of sale in packaged form, as it was packed originally (by the manufacturer M/s. GMIPL), in reaching to the ultimate consumer. The Bakeries have purchased this product in between, opened the package, and used it to make finished desserts like cakes and pastries, which were ultimately sold to the ultimate consumer. This fact is admitted by Shri Nasir Hussain Sayed, National Manager (Business Development) - M/s. GMIPL, in his statement dated 16.01.2013. So long as the packaged commodity is not sold as it is, without opening or breaking the package, 'to the ultimate consumer in retail sale, the sale cannot come forward for consideration under PC Rules, and likewise, the valuation will not come under Section 4A of the Central Excise Act, 1944.' in the impugned order. It is, therefore, necessary to scrutinize the legislated scheme of the taxing mechanism, and subsequent to the E/89197/2013 10 referenced law, for testing the foundation of the impugned order claiming implied authority to determine the extent of coverage of the impugned notification and the counter-challenge that the adjudicating authority - a creature of the taxing statute caged within the empowerment vested in Central Government to append assessment to prescription in the 'other law' for valuation - lacked such empowerment once the intent of Central Government was articulated by the impugned notification.
10. It is under the empowerment of '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 Legal Metrology Act, 2009 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 the 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 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 less such abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette.' that the impugned notification came to be issued. The enabling E/89197/2013 11 provision supra, contemplates a two stage process, viz., that of identifying all, or some, of the goods that, under the 'other law', was required to declare 'retail sale price' on the package first and, to the extent of these being excisable as well as chargeable to duty with reference to value, the default resort to section 4 of Central Excise Act, 1944 be substituted by deemed value, as specified and assessed to duty subject to abatement allowed, at the second stage. As the impugned notification has enumerated goods, in terms of chapter/heading/sub- heading/tariff item and description - having no bearing on valuation and appears intended only for convenience in identifying the goods, and prescribed the extent of abatement, two stages appear to have been merged in a single instrument. This is not really surprising as '4. Regulation for prepacking and sale, etc. of commodities in packaged form On and from the commencement of these rules, no person shall pre-pack, or cause of permit to be pre-packed any commodity for sale, distribution or delivery unless the package in which the commodity is pre-packed bears thereon, or on a label securely affixed thereto, such declarations as are required to be made under these rules.' mandating the 'other law' that is relevant to assessment under Central Excise Act, 1944, viz., The Standards of Weights and Measures (Packaged Commodities) Rules, 1977, as intended for '(3)........are, or are intended or likely to be -
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(i) sold, distributed or delivered or offered or displayed for sale, distribution or delivery, or
(ii) stored for sale, distribution or delivery....' in 'pre-packed' form as per rule 1 therein without reference to any particular commodities which is of essence in levy of duties of central excise. Moreover, 'goods' does not find acknowledgement in Central Excise Act, 1944 rendering such exercise contemplated by section 4A(1) of Central Excise Act, 1944 to be purposeless without section 4A(2) of Central Excise Act, 1944. It is not for us to dilate further on this conundrum. Suffice it to say that in the light of '3. Chapter to apply to packages intended for retail sale The provisions of this Chapter shall apply to packages intended for retail sale and the expression "package", wherever it occurs in this Chapter shall be construed accordingly.' that, with effect from 13th January 2007, '2A. 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 consumers or institutional consumers Explanation: For the purposes of this rule,-
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(i) "institutional consumer" means ...........;
(ii) "industrial consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer/packers for using the product in their industry for production, etc.' in the said Rules, added to the former with the latter reflected as '3. 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 consumers or institutional consumers Explanation: For the purposes of this rule,-
(i) "institutional consumer" means ...........;
(ii) "industrial consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer for use by that industry.' in the Legal Metrology (Packaged Commodities) Rules, 2011 without the former, pertain to declaration requirements of rule 5 of chapter II among which is 'retail sale price' that triggers the machinery of 'retail sale price' assessment.
11. The details, as found in rule 5 of the Standards of Weights and E/89197/2013 14 Measures (Packaged Commodity) Rules, 1977 and rule 6 of Legal Metrology (Packaged Commodity) Rules, 2011 respectively, are several; among these, and relevant for operationalizing section 4A of Central Excise Act, 1944, is requirement of 'retail sale price' devolving upon such packaged commodities as are intended for retail sale which remained unchanged even after distinction of packaging and market was incorporated in rule 2A therein with effect from 13th February 2007. In the Legal Metrology (Packaged Commodity) Rules, 2011, only, and as before, package quantity beyond stipulated threshold and the two categories of markets were enumerated as not amenable to the stipulations with intent of retail sale erased out of existence. The question to be answered, therefore, is the extent to which the notification under section 4A of Central Excise Act, 1944 could circumscribe application to clearance of commodities in 'pre- packaged' form.
12. The empowerment to notify 'goods' to which the machinery provision of section 4A(2) of Central Excise Act, 1944 is circumscribed by qualification of having to be required to declare 'retail sale price' - which, though undoubtedly, not specified by description of the commodity - are, nonetheless, by operation of restriction assigned by rule 3 of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 limited to such packages as are intended for retail sale. The construing of 'package' appearing anywhere in chapter II of Standards E/89197/2013 15 of Weights and Measures (Packaged Commodities) Rules, 1977 as being saddled thus restricts the empowerment of the Central Government in section 4A(1) of Central Excise Act, 1944 to such 'intent' only. Consequently, it can be posited that 'goods' in section 4A(1) of Central Excise Act, 1944 refers only to 'packaged commodities' intended for retail sale.
13. 'Intent', normally, is a state of mind and is to be construed from compliance with predicate requirements; more so, when the obligation devolving on manufacturers who, usually, avail of marketing chain before the actual consumer is reached, is only demonstrable thus. Printing of requirements mandated in rule 6 of Legal Metrology (Packaged Commodities) Rules, 2011 suffices for such intent. Construing of such intent can be displaced when contrary is established by other evidence; such avenue should inhere in any situation of construing by presumption. The specific bar on 'retail sale' on packages cleared by appellant is adequate discharge as evidence of overriding intent with fact prevailing over presumption of intent. Consequently, for the period preceding commencement of Legal Metrology (Packaged Commodities) Rules, 2011, the impugned notification does not apply to goods cleared by the appellant.
14. For the period thereafter, such 'intent' does not circumscribe 'packages' deployed anywhere in chapter II of Legal Metrology E/89197/2013 16 (Packaged Commodities) Rules, 2011 and, therefore, does not restrict the empowerment of notifying of 'goods' for the purpose of section 4A(1) of Central Excise Act, 1944. The substantive distinction between deemed circumscribing of 'packages' for the enforcement of rule 5 of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and absence of such curtailed meaning of 'package' for requirement to comply with rule 6 of Legal Metrology (Packaged Commodities) Rules, 2011 makes for the difference in interpreting the extent and reach of power conferred on the Central Government to resort to 'retail sale price' assessment. Consequently, all commodities in 'pre-packaged' form, to the extent incorporated in the impugned notification, are subject to assessment on 'retail sale price' less abatement as prescribed therein after March 2011.
15. Both sides have been jeopardized, to some extent, by our findings supra necessitating scrutiny of the grounds on which the adjudicating authority was led to hold entirely against the appellant herein as well as the case law cited on behalf of appellant and respondent for notes of discordance of, or inconsistency with, our findings. The impugned order has held that the impugned goods fall within the exclusion specified in Legal Metrology (Packaged Commodities) Rules, 2011 by releasing goods sold to 'industrial consumer' from obligation to be in compliance with rule 6 thereof. The Standards of Weights and Measures Act, 1976 was initially enacted to afford assurance to E/89197/2013 17 consumers that contents of 'packaged goods' were as displayed on the packing and to fasten responsibility on manufacturers/producers for such conformity through prescriptions and stipulated exceptions in Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Though intended, originally, for consumer protection in the course of inter-state trade or commerce, legislating of Standards of Weights and Measures (Enforcement) Act, 1985 rendered it equally applicable to 'commodities in packaged form' traded within states too. While pre-packaging at factory of manufacture did contribute enormously in enhancing distribution, utility any buyer was, and by being precluded from tactile and visual acquaintance, for quality and quantity, concurrently susceptible to being short-changed in the commercial transaction. The Standards of Weights and Measures Act, 1976 and Legal Metrology Act, 2009 were legislated to compel accountability in all relevant aspects at different levels of the distribution chain founded on the detailing of particulars on the package; these were several, of which 'retail sale price', despite being only one among the many, was of overwhelming significance only for levy of duties of central excise; none of the prescriptions were amenable for dilution except when clearance of 'pre-packaged commodity' were effected to 'industrial consumers' or 'institutional consumers' by rendering that class as not necessitating enforcement oversight. Yet, as being excepted from the rigour of declaration and consequence of E/89197/2013 18 accountability, such exclusion, if not availed by declining to comply with rule 6 of Legal Metrology (Packaged Commodities) Rules, 2011, would not absolve a manufacturer from responsibility for conformity of the commodity with the description. As we have premised supra, consumer protection laws are not dovetailed to tax compliance but tax laws have latched on to the consumer protection laws for a low price ride. Therefore, the scope of the impugned notification is not curtailed, for purposes of intended coverage, by availability of such option to comply or dispense with declaratory and accountability obligations in the face of recorded compliance.
16. Furthermore, the adjudicating authority has excluded the market catered to by the impugned goods by reading down 'consumer' as 'ultimate customer' which finds very limited deployment in the Rules. It is not in '(q) "retail sale", in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer; in rule 2 of The Standard Weights and Measures (Packaged Commodities) Rules, 1977 or as unaltered continuation in rule 2 (l) of The Legal Metrology (Packaged Commodities) Rules, 2011 that consumer is so qualified but in E/89197/2013 19 '(p) "retail package" means the 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 consumers or institutional consumers;' of rule 2 of The Standard Weights and Measures (Packaged Commodities) Rules, 1977, replicated in rule 2(k) of The Legal Metrology (Packaged Commodities) Rules, 2011, that such expression is found. The latter, however, is not germane to 'retail sale price' assessment and the lack of such expression in the former renders such usage to be beyond the scope of adjudication under Central Excise Act, 1944. In any case, 'retail package', as an expression, mere serves to complement 'wholesale package' in rule 2(x) of The Standard Weights and Measures (Packaged Commodities) Rules, 1977 and rule 2(r) of The Legal Metrology (Packaged Commodities) Rules, 2011 which are not germane to the dispute before us. The distinguishment of 'ultimate consumer' as the criteria for applicability of section 4A of Central Excise Act, 1944 to the impugned transactions has no basis in law. It is worth noting that even in relationship to 'industrial' usage or 'institutional' deployment, the buyer yet remains consumer. There is no reason to suppose, as the adjudicating authority has, from the tax statute or the consumer protection laws that 'bakeries' are not intended recipients of such protection. The adjudicating authority has stretched E/89197/2013 20 logic to conclude that the transformation on a product, by change of form and attributes, does not alter the product for ascertainment of actual consumer. These unsubstantiated conclusions on the intent of consumer protection law and the extent of taxing statute are inappropriate justification for alteration of assessment methodology.
17. The adjudicating authority has placed reliance on the decision of the Hon'ble High Court of Karnataka in re Ewac Alloys Ltd. Reference was also made to the decision of the Hon'ble Supreme Court in re Jayanthi Food Processing (P) Ltd. On behalf of respondents, the decision of the Hon'ble Supreme Court in Commissioner of Central Excise & Service Tax, Kanpur v. AR Polymers Pvt Ltd [2023 (384) ELT 512 (SC)] was cited. The two judgements of the Hon'ble Supreme Court found that institutional consumers, which were the recipients of goods impugned therein, are not final consumers because the goods are subject to further sale in that very form. The facts of the present case are totally at variance as the goods impugned here lose the form in which they have been cleared by the appellant in the hands of those erroneously held as not being final consumers even on the admitted reality that customers of 'bakeries' are in the market for 'cakes' and 'bakes' which would render the 'bakeries' to be the final consumer. In re Ewac Alloys Ltd, the dispute had its genesis in breach of Standards of Weights and Measures (Packaged Commodity) Rules, 1977 in which the claim of exception from the rigour of rule 5 therein was allowed E/89197/2013 21 on acceptance of the plea of the petitioner in writ proceedings that notice under the enforcement provisions was, at the threshold, not warranted. That dispute had nothing to do with assessment in accordance with section 4A of Central Excise Act, 1944 which flows from the remit, limited as it is, to draw upon goods required to declare 'retail sale price' to direct assessment away from the default mechanism of section 4 of Central Excise Act, 1944.
18. The reliance placed by the appellant on the decision in re Larsen & Toubro is not germane to the resolution of the impugned dispute inasmuch as the customers of the appellant have been acknowledged by us, in like manner and on facts, as 'consumers' in whose hands the impugned goods lose identity as a distinct product. In the other decisions, the disputes had origin in attempt by central excise authorities to fasten assessment under Central Excise Act, 1944 in which the nature of the goods was held to be the basis for seeking cover under the exceptions in the consumer protection laws which was resisted on facts of delivery through dealer network that was found acceptable by the Tribunal. The decisions of the Tribunal, pertaining to 'restricted distribution' which were held to be irrelevant to assessment under section 4A of Central Excise Act, 1944, did not have cause to examine the limitation in the enablement of Central Government to notify goods under section 4A(1) of Central Excise Act, 1944. We have held supra that the limitation, couched in narrow meaning assigned to E/89197/2013 22 'packages' for the purpose of declaration under rule 3 of Standards of Weights and Measures (Packaged Commodity) Rules, 1977, on powers to direct assessment under section 4A(1) of Central Excise Act, 1944 is not susceptible to expansion by another provision therein.
19. The demand of differential duty for the period prior to 1 st April 2011 is upheld while setting aside the demand for the period thereafter. The intention of the appellant not to clear for retail sale during the former period is evident despite which they resorted to abatement from 'retail sale price' even though not entitled thereto. Nothing has been brought on record to evince that such intent, espoused in the markings, was not prompted by clear appreciation of the legal limitation on the jurisdiction of the Central Government to notify goods for alternative assessment. We, therefore, do not find any reason to interfere with the penalty mandated under section 11AC of Central Excise Act, 1944. Appeal is partly allowed.
(Order pronounced in the open court on 20/02/2024) (AJAY SHARMA) (C J MATHEW) Member (Judicial) Member (Technical) */as