Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs Charishma Cosmetics Pvt. Ltd. on 9 March, 2006
ORDER Chittaranjan Satapathy, Member (T)
1. Heard both sides. The applicant Commissioner has appealed before us against the order of the lower appellate authority holding that the impugned goods namely Lipsticks and Nail Polishes do not attract the provisions of Section 4A of the Central Excise Act, 1944 requiring valuation on the basis of MRP.
2. After hearing both sides and perusal of the case records, we find that the lipsticks and nail polishes are transported in bigger boxes containing 288 pcs. each containing smaller boxes of 24 pcs. each. Neither the bigger boxes nor the smaller boxes are intended for retail sale. The boxes have individual pieces of lipsticks and nail polishes in attractive packs and the quantities contained in the individual pack is 4 I gm. for the lipsticks and 8 ml for the nail polishes.
3. Shri S.S. Bhagat, learned SDR has shown us the definition of multi piece package in the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (SWMR) under which the "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 whole (emphasis ours).
4. The learned Advocate for the respondents submits that the small boxes containing 24 pieces of the lipsticks and nail polishes of the same quality and quantity are only packed in such small boxes for transportation purpose and he further states that only the individual pack is sold in retail, not the boxes of 24 pieces or 288 pieces,
5. We find that Rule 34 of SWMR exempts under Sub-rule (b) packages containing the commodities net weight of which is less than 10 gm. or 10 ml if sold by weight or measure from the entire SWMR including provisions of Rule 17, which is applicable to multi pieces packages. We also find that the issue of applicability of Section 4A to packages of cosmetics has been dealt at length by the Larger Bench decision of the Tribunal in the case of CCE, Mumbai v. Urison Cosmetics Ltd. vide Order No. M/278/WZB/06/C-I/EB dated 7-2-2006 , which held that the cosmetics are required to be sold by weight or measure and not by numbers and hence, subject to the limits prescribed under Rule 34(b) of SWMR, packages of cosmetics would remain outside the purview of the said rules and would be assessed under Section 4 of the Central Excise Act, 1944.
6. We are of the view that the said Larger Bench's decision is squarely applicable to the present case and hence, we do not find any reason to interfere with the order passed by the lower appellate authority and hence, we reject the department's appeal.
(Dictated in open court)