9911796707
TMI Blog2007 (2) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial use and not for retail sale and were accordingly cleared at the transaction value instead of the MRP based valuation as per-Section 4A of the Central Excise Act, 1944, Investigations revealed that the imported items after clearance were brought into trading godown of the appellants at Sinnar and were warehoused. These items were traded from the godown by transfer to various depots of LIPL for further sale to wholesaler/dealers on the list price as fixed by LIPL. Labels were affixed on the packages of MCCBs stating that the goods are specially packed for the exclusive use in any industry as raw material or for the purpose of servicing any industry, mine or quarry and not intended for retail sale . Investigation however revealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, provision of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 do not apply as has been held by the Kerala High Court in the case of Peico Electronics Electricals Ltd. v. Union of India - O.P. No. 14701 of 1994 A dated 26-8-2002 wherein it was held that Standard of Weights and Measures (Enforcement) Act, 1985 are applicable only in respect of the trade or commerce by weight, measure or number. A stereo set or a refrigerator is not sold in weight or by measure or by number. It will be sold only in single number. They are not sold in packets containing more than one number and therefore it cannot be considered as commodity in package form. Similar decision was given by Madras High Court in the case of Philips India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw material or for the purpose of servicing any industry, mine or quarry . and therefore once the goods were declared to be meant for industria1 use, they were not covered by the Packaged Commodities Rules. He referred to the Commissioner s finding that the declaration contained the words not intended for sale instead of not for retail sale as is normal practice in cases where the goods are not meant for retail sale and submitted that Rule 34 only required them to make a declaration which did not include the word not for retail sale and therefore once the declaration has been made as per Rule 34, the same cannot be challenged on the ground that it was nor properly worded and the words not for retail sale were not written. Relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th and was only a means of getting out of the Packaged Commodities Rules and therefore the goods have to be considered as covered by the provision of Standards of Weight and Measures Act as they were commodities specified by the Government under Section 4A and the Standards of Weight and Measures Act. 6. We have considered the submissions. We find that the appellants have open able to make out a prima facie case in their favour so as to be call for complete waiver of pre-deposit of duties and penalties imposed inasmuch as two items plugs and sockets were not imported in a packed condition and the other MCCBs were packed in single piece carrying a declaration as required under Rule 34 of the packages rules and were therefore not covered un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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