Customs, Excise and Gold Tribunal - Delhi
Bharti Systel Ltd. vs Cce on 7 March, 2002
Equivalent citations: 2002(81)ECC575, 2002(147)ELT1007(TRI-DEL)
ORDER S.S. Kang, Member (J)
1. Applicants filed this application for waiver of pre-deposit of duty of Rs. 2,12,15,180.
2. In the impugned order the lower authorities held that telephone sets cleared to Department of Telecommunication by the applicants are assessable to duty at the maximum retail price under Section 4A, CE Act.
3. The contention of the applicant is that as per the provisions of Section 4A of the Central Excise Act, 1944 that the duty is to be paid on the maximum retail price on the goods which are required to print MRP on the packing under the provisions of standards of Weights and Measures Act, 1976. Section 34 of the Standards of Weights and Measures (Packed Commodities) Rules, 1977 provides that the Rule shall not apply to any packages containing a commodity, if, the marking on the packages indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry. The contention of the applicant is that as the telephone cleared to the Department of Telecommunication are for the servicing of the industry, therefore, they are not required to mention the maximum retail sale price on the packages. They also relied upon the Board Circular dated 11.8.97, and submits that when a MRP is required to be indicated under the provisions of Standards of Weights and Measures Act, 1976 or any other law, the provisions of Section 4A will be applicable and in the case where the manufacturer voluntarily fixed the MRP which is not statutorily required, then the excise duty on goods in such packages shall not be charged on the basis of Section 4A of the Central Excise Act, 1944. Their submission is also that Bank guarantee of Rs. 1,52,27,165 is still alive which was furnished at the time of provisional assessment of the goods in question under Rule 9B of the Central Excise Rules.
4. The contention 6f the Revenue is that the applicants specifically approached the authorities under the Standards of Weights and Measures Act, 1976 for exemption from mentioning the MRP on the telephones supplied to the Department of Telecommunication. The exemption was specifically declined. The contention of the Revenue is that when an authority under the Act specifically declined the exemption under Section 34 of the Standards of Weights and Measures Act, 1976, therefore, now the applicants cannot say that they are not liable to pay the duty as per the provisions of Section 4A of the Central Excise Act. The Revenue also relied upon the decision of the Tribunal in the case of M/s. Jayanti Food Processing (P) Ltd. v. C.C.E. Final Order No. 19/2002-A dated 10.1.2002.
5. Heard both sides.
6. In this case the contention of the applicants is that they are exempted under Section 34 of the Standards of Weights and Measures Act, therefore, the provisions of Section 4A of the Central Excise Act, 1944 are not applicable in respect of telephone cleared to the Department of Telecommunication. The exemption claimed under Rule 34 of the Rules, 1977 was specifically asked by the applications was declined by the competent authority. The Tribunal in the case of M/s. Jayanti Food Processing (P) Ltd., after considering the provisions of Section 34 of the Standards of Weights and Measures (Packed Commodities) Rules held in respect of the packages cleared with the specific marking for catering industry, the value of such goods are to be assessed under Section 4A of the Central Excise Act.
7. The case of the applicant is arguable which requires detailed examination of the evidence produced by the applicants in support of their claim. Taking into facts and circumstances of the case, prima facie, it is not a fit case for total waiver of duty. The applicants is directed to deposit a sum of Rs. 50 lakhs (Rupees fifty lakhs only) within a period of 8 weeks from today. The applicants are also directed to keep alive the Bank Guarantee already furnished with the Revenue authority during the pendency of the appeal. On showing the compliance to the above conditions, the pre-deposit of remaining amount of duty is waived for hearing of the appeal. To come up for reporting compliance on 21.5.2002.