Rohtak vs M/S Gobind Tobacco Mfg.Co

[Arising out of OIA No.129/GRM/RTK/2006, dt.26.04.2006, passed by Commissioner of Central Excise & Customs (Appeals), Gurgaon.

Commissioner, Central Excise & Service Tax,

Rohtak Appellant

Vs

M/s Gobind Tobacco Mfg.Co. Respondent

Represented by:

For Appellant: Shri A.K. Singh, Authorised Representative

For Respondent: Ms.Krati Somani, Advocate

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

Mr. P.S. Pruthi, Honble Member (Technical)

1. Whether Press Reporters may be allowed to see the No

Order for publication as per Rule 27 of the CESTAT

(Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No

CESTAT (Procedure) Rules, 1982 for publication

in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen

the order?

4. Whether order is to be circulated to the Departmental Yes

authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

MR. P.S. PRUTHI, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:23.01.2015

Final Order No.51099/2015

Per: P.K. Das

1. Revenue filed this appeal against the order of Commissioner (Appeals), whereby the adjudication order was set aside.

2. After hearing both the sides and on perusal of the records, we find that the issue involved in this case is whether the contents in the pouches weighing 8 grams and 5 grams is to be assessed under Section 4A of the Central Excise Act, 1944 as held by the Adjudicating authority or under Section 4 of the Central Excise Act, 1944 as claimed by the Revenue.

3. We find that this issue is no more res-integra in view of the decision of the Tribunal by Final Order No.1356-1365/09/EX(DB), dt. 09.12.2009, in the case of CCE Rohtak Vs Bharat Tobacco Manufacturing Co. & Others, dismissed the appeal filed by the Revenue. The relevant portion of the said decision is reproduced below:-

5. The issue involved is whether in respect of chewing tobacco which are packed in less than 10 gm. valuation under Section 4A shall be applicable or valuation under Section 4 of the Central Excise Act shall be applicable. According to the Department, the valuation under Section 4A is to be adopted. On behalf of the parties, it was submitted that valuation under Section 4A could not be applied in respect of retail packages weighing less than 10 gms and in all these cases, admittedly the packages are below 10 gms each.

6. This issue is no more res-integra in as much as several decisions have been given by the Tribunal holding that in such cases of retail packs containing less than 10 gms valuation under Section 4A is not applicable, for example, the decision in the case of Miraj Products Pvt.Ltd. Vs CCE Jaipur  2009 (91) RLT 25. In view of the above, we do not find any merit in the appeals filed by the Department. On the same reasons, the appeals by Milap Zarda Udyog and M/s Gold Leaf Products deserve to be allowed.

4. Revenue strongly relied upon them decision of the Honble Madras High Court in the case of Varnica Herbs V CBEC New Delhi  2004 (163) ELT 160 (Mad.). We find that the Honble Supreme Court in the case of CCE Vapi Vs Kraftech Product  2008 (224) ELT 504 (SC) held the reasoning adopted by the Madras High Court in the case of Varnica Herbs (supra) does not appear to be good law.

5. In view of the above discussion, we do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Cross objection disposed of.

(Dictated & Pronounced in Court)

(P.S. Pruthi) (P.K. Das)

Member (Technical) Member (Judicial)

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