Per S.S. Kang :

Heard both sides.

2. Revenue filed this appeal against the order in appeal passed by the Commissioner (Appeals). In the impugned order the Commissioner (Appeals) held that the package of 40 gm lays potato chips to be supplied free alongwith pepsi of 1.5 litre are assessable under Section 4 of the Central Excise Act for the purpose of assessing the excise duty.

3. In the present appeal the contention of the Revenue is that these are notified goods and they are assessable under Section 4A of the Central Excise Act on the ground that lay potato chips are required to be affixed with retail sale price under the provisions of the Standards of Weights & Measures Act, 1976. Therefore, they are liable to be assessable under Section 4A of the Central Excise Act. The Revenue relied upon the decision of the Tribunal in the case of Nestle India Ltd. vs. Commissioner - 2004 (61) RLT 572 (CESTAT-Mum.)=2004 (163) ELT 249.

4. In this case the undisputed facts are that the packet of lay does not contain any MRP and it would bear the text "free with 1.5 litre Pepsi and not for retail sale". In the case of Nestle India Ltd., (supra), the Tribunal after going through the fact that the price of the kitkat is mentioned on the bottle of Pepsi held that the kitkat are assessable under Section 4A of the Central Excise Act. The facts of the present case is different. In this case it is admitted by the Revenue that no MRP is mentioned on the bottle of Pepsi and it is specifically mentioned that these are not for retail sale and should be distributed free along with bottle of pepsi 1.5 ltr. The Tribunal in the case of of M/s. G.S. Enterprises vs. CCE, Jaipur - 2004 (172) ELT 31 held that goods distributed free alongwith shoe polish without bearing any MRP on the packets are assessable under Section 4 of the Central Excise Act and not under Section 4A of the Central Excise Act. The Tribunal relied upon the Board Circular No. 625/16/2002-CX dated 28.2.2002 [reported in 2002 (49) RLT M93].

5. We find that the ratio of the decision of the Tribunal in the case of M/s. G.S. Enterprises (supra) is applicable on the facts of the present case. In view of the above, we find no merit in the appeal, the appeal is dismissed.