ORDER
G.R. Sharma, Member (T)
1. In the impugned order Ld. Commissioner (Appeals) held :
“I have gone through the case papers and the submissions made by the appellants. I find there is considerable merit in the submissions made by the appellant relating to Explanation II Section 4A. A plain reading of the wording of the said Section can lead to only one conclusion, namely, the same comes into play only when more than one MRP is declared on the same packaging and the same cannot be invoked to cover cases of different packaging meant for different class of buyers showing separate MRP. In view of the above facts, the impugned order is not sustainable and accordingly is set aside”.
Being aggrieved by this order, Revenue has filed the captioned appeal.
2. The facts of the case in brief are that the respondents herein are engaged in the manufacture of detergent powder. During the period 12-1-1998 to 18-2-1998, they had two MRPs for their products, “Wheel” Detergent Powder, packed in two different packaging of one kg. each. On one MRP shown was Rs. 17/- per kg. and on the other which was meant for Canteen Supply, the MRP shown was Rs. 16.15 per kg. The question to be decided is whether both the MRPs can be accepted and duty charged accordingly or only the higher one of the two can be accepted. The Asstt. Commissioner held that Explanation II to Section 4A provides that the higher of the declared maximum retail price shall be deemed to be the retail sale price for the purpose of levying duty. The respondent herein went into appeal before the Commissioner (Appeals) against the order passed by the Asstt. Commissioner and the ld. Commissioner held as indicated in the preceding paragraph.
3. Arguing the case for Revenue Shri P.K. Jain, ld. DR submits that as per the provisions of Sub-section (2) of Section 4A, detergent powder in retail packings were chargeable to duty of excise with reference to value, i.e., maximum retail sale price read with relevant notifications; that for the purpose of valuation provisions of Section 4A were overriding to Section 4 of the Act; that from Explanation II of Section 4A it was clear that where on any excisable goods more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purpose of Section 4A; that the Commissioner (Appeals) has misinterpreted Explanation II of Section 4A holding that it was applicable in those cases only where more than one retail sale price was printed on one packet; that the said Explanation speaks of excisable goods and not of packets of excisable goods in the case of Explanation I. Ld. DR submitted that the admitted position was that the content in the two packages were the same but there were two MRPs; that since the contents were the same, there cannot be different MRPs for the same excisable goods; that the contention of the respondent herein that the CSD was a special class of buyer was not acceptable since there was no scope of different class of buyers under Section 4A which is independent section having no relation with Section 4 of the Act. Ld. DR, therefore, prayed that the appeal may be allowed.
4. Shri P.K. Mittal, ld. Counsel appearing for the respondent submitted that the respondents were selling goods to general public as well as CSD; that the price for general public for one kg. of “Wheel” Detergent Powder was Rs. 17/- whereas the price for CSD was Rs. 16.15 per kg; that a simple reading of the Explanation to Section 4A would show that the retail sale price must be shown on the same packaging and that only in such an eventuality the higher price prevails; that in the case of respondents herein this is not the correct position inasmuch as in each of the two packaging only a single MRP has been declared. Ld. Counsel also produced the packaging of Britannia for “Merricake” showing different prices for different regions and of Dalda Vanaspati again showing prices for different States on the same packaging. He submitted that in such a case the higher of the retail prices shall be the MRP for purpose of levy of duty. Ld. Counsel submitted that Section 4A does not over-ride the provisions of Section 4 and therefore, sales to different class of buyers can carry different prices. He, therefore, prayed that the appeal may be rejected.
5. We have heard the rival submissions. We find that the entire case is based on the interpretation of Explanation II under Section 4A. This Explanation reads :
“Where on any excisable goods more than one retail sale price is declared, the maximum of such retail sale price shall be deemed to be the retail sale price for the purpose of this Section”.
The Interpretation placed by the Department on this Explanation is that the retail sale price on any excisable goods if declared differently then the higher of the two shall be the MRP for purpose of levy, whereas the assessee has contended that the meaning of the words should be that if on a package more than one price is declared then the higher declared price shall be the MRP for purpose of levy. We find from the wordings of the Explanation that it is the declaration on the excisable goods in fact and practice the price is declared on the packages in terms of Standards of Weights and Measures Act, 76 or the Rules made thereunder. Thus, it is the price declared on the container or packaging which has been referred to in Explanation II of Section 4A. The correct interpretation of Explanation II will, therefore, be that if on the containers/packaging more than one retail prices are declared then the higher retail price shall be the MRP for purpose of levy of duty. In this view of the matter, we do not find any legal or factual infirmity in the impugned order. The same is, therefore, upheld and the appeal of the Revenue is rejected.