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d) The MRP printed on the individual Toffy Max Caramel/ Chocolate is 0.50 Paise.
e) The whole sale pack in which the individual Toffy Max Caramel/Chocolate are packed carries, inter alia, the following declaration on it:
Wholesale Package MRP 50 paise per piece (inclusive of all taxes) Net Weight 500 g (125 Units) Mfg. .... 
Batch No.         ....
Without affecting the Net Weight, occasionally, there could be
variation in the number of units.
1.3 The valuation and assessment of sugar confectionary falling under Heading 17.04 and 18.04 was brought under the MRP based assessment under Section 4A of the Central Excise Act, 1944 by Union Budget 2002. There has been an ongoing dispute between the appellants and the Department about the valuation of the confectionary. According to the appellants, there is no statutory requirement under the Standards of Weights and Measures Act, 1976 and the Rules made thereunder, to declare the MRP on the wholesale package. It was also the contention of the appellants that there is no requirement under the law to declare MRP on the individual sugar confectionary, since the weight of the individual confectionary is less than 10 gms. as provided in Rule 34 of the 1977 Rules made under the 1976 Act. However, according to the Department, the valuation of sugar confectionary has to be done in terms of Section 4A of the Act.

(iii) Chapter 11 pertains to provisions applicable to packages intended for retail sale. Under Chapter 11, Rule 3 states that whenever the packages are intended for retail sale, the provisions of Chapter 11 will apply. It is under Chapter 11 the PC Rules specify the declaration of MRP. Since for every package sold in the market declaration of MRP is required, declaration of MRP is required to be affixed or indicated on the package only when such package is intended for sale in retail sale.

2.4 CBEC vide following circulars has clarified that even if the commodity is notified for the purposes of Section 4A(1), if there is no statutory requirement under the law i.e. MRP Rules for declaring MRP on the packages cleared by the manufacturer, then, the assessment will be done under Section 4 and not under Section 4A.

(a) Circular/Letter F.No. 341/64/97-TRU dated 11-08-1997

(b) Circular No. 411/44/98-CX dated 31-07-1998

(c) Circular No. 625/16/2002-CX dated 28-02-2002 In all these circulars, it has been clarified that valuation under Section 4A will be restored to only when there is a statutory requirement for declaring the MRP on the packages by the manufacturer and such commodities are notified by the Government under Section 4A(1). It has also been clarified that even if an item is notified under a Notification issued under Section 4A(1), if there is no statutory requirement to affix MRP, then Section 4A cannot be resorted to. It is an obvious fact that in the trade all items are ultimately meant for sale to customers. The question is, whether in the form in which the goods are cleared are meant for retail sale or not? It is only such packs, which are intended for retail sale, are to be affixed with MRP and only in respect of such commodities, Section 4A will be applicable, if notified by the Government, for the purposes of Section 4A. The view of lower authorities that the moment the goods are notified under Section 4A(1), then the goods are liable to duty with reference to the MRP, cannot be upheld.

(iv) The marketing pattern of the impugned goods explained above would clearly establish that these impugned pouches are really wholesale packages, which are meant for ease of distribution to the retail trade and are not intended for retail sale to the ultimate consumer.

The appellants submit that the impugned packages in the form of 'pouches' and 'jars' are in fact 'wholesale packages' coming within the meaning of Rule 29 of the Standards of Weights and Measures (Packager Commodities) Rule, 1977. The appellants further submit that the issue of goods sold in wholesale packs, sold to retailers and the applicability of MRP on such wholesale packs was considered by the Central Board of Excise & Customs vide CBEC Circular No. F.No. 341/64/97-TRU dated 11.08.1997. In this Circular, it was clarified that MRP is not required to be affixed on the clearance of goods in wholesale packs. Further, in Circular No. 411/44/98-CX dated 31.07.1998, the CBEC had taken cognizance of the practice of sale to retailers in wholesale packs and had clarified that in case MRP is not required to be affixed statutorily, then the same are liable to be assessed under Section 4 of the Central Excise Act, 1944. The Central Board of Excise & Customs had once again vide Circular No. 625/16/2002-CX dated 28.02.2002, clarified that Section 4A of the Central Excise Act, 1944 is applicable in respect of those cases only where the manufacturer is legally obliged to print the MRP on the packages of the goods, under the provisions of the Standards of Weights and Measures Act, 1976 or the Rules made thereunder or any other law for the time being in force. In the light of the clarifications given in the above Circulars, the appellants submit that the CBEC had recognized the practice of sale of goods both under MRP as well as to buyers in bulk and the decision of the Ld. Commissioner (Appeals) to bring such clearances of wholesale packs within the ambit of retail packs for charging duty on the basis of MRP and the requirement of declaring the MRP on individual packages under Rule 6(1)(f) of the SWMR, is not tenable.