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