Customs, Excise and Gold Tribunal - Mumbai
Electrolux Kelvinator Ltd. vs Commissioner Of Central Excise on 7 October, 2004
Equivalent citations: 2005(179)ELT214(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. After hearing both sides and considered the material on record it is found that the brief background of the case and issues is ----
i. M/s. Electrolux (India) Limited, Refrigerator Plant, Dist. Chandrapur (herein after referred to as the appellants) are, inter alia, engaged in the manufacture of refrigerators falling under Chapter Heading 84.18 of Central Excise Tariff Act, 1985.
ii. The refrigerators are chargeable to duty having being notified under Section 4A of the Central Excise Act, 1944 vide Notification No. 9/2000-CE(NT) dated 1.3.2000, the goods manufactured by the appellants are therefore chargeable to duty on the value determined under Section 4A of the Act after claiming abatement allowed from the retail sales price @ 40% vide Notification ibid.
iii. They filed necessary declarations under Rule 173C of erstwhile Central Excise Rules, 1944 indicating the MRP for the respective models from time to time & discharged duty on the basis of the MRP declared and affixed on the refrigerators, in terms of Section 4A. Copies of the price declarations filed from time to time are collectively enclosed as Annexure-1.
iv. The refrigerators manufactured are stock transferred to depots from where they are sold to the dealers/distributors who in turn sell to individual consumer. There is no dispute in the present case that such sale are liable to be assessed under Section 4A ie MRP based assessment.
v. They also sell refrigerators to the bottling companies of Pepsi, Coco-Cola and other soft drink manufacturers under contract. The goods sold to the soft drink manufacturers are also affixed with the MRP. The contract price is not affixed as the MRP. The soft drink manufacturers do no further sell the refrigerators. The soft drink manufactures instead give the refrigerators to their retail outlets on rental basis. The duty on such refrigerators was also determined by the appellants on the basis of the MRP affixed in terms of the provisions of Section 4A of the Act, the present dispute is related to these refrigerators, sold to soft drink manufacturers.
2. After hearing both sides and considering the material on record it is found
a) Sale of refrigerators to soft drink manufacturers, are sold in bulk, there is no retail sale. The matter of application of Section 4 A assessment in such case is now well settled, in favour of the appellant, by the decision in the case of ITEL India 2004 (163) ELT 219 (T) in that case the assessee sold telephone instruments to DOT/ MTNL in bulk with MRP affixed on them. Who in turn lent the instruments to subscribers & was no sale in retail.
b) CCE (Appeals) holding that the refrigerators are not sold by the appellants in Retail and since goods are sold in bulk to the soft drink manufacturers therefore provision of Section 4A cannot be applied cannot be upheld since liability to declare the Maximum Retail Price (MRP) exists and exemption under the Standard of Weights and Mensures Act, and the rules made there under is available to goods specially packed for the exclusive use of any industry or service in mines or quarry. In the present case the goods are sold with MRP without any special packaging indicating an use as Raw material or for use in service industry. Rule 34 (a) framed under the standard & weights measure Act is not applicable. The appellants are statutorily required to declare a MRP on the Refrigerators, have done so, therefore they cannot be denied the benefit of Section 4A assessment.
c) The reliance of the lower authority that subsequently the appellants have stated paying duty under Section 4 cannot be aground to levy duty under Section 4 when as per law it should be under Section 4A.
3. In view of the findings, the order is to be set aside & appeal allowed. We order accordingly & dispose off the appeal.
(Pronounced in Court)