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TMI Blog2006 (12) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... nder chapter sub-heading No. 8418.10 and other excisable goods. They had manufactured Refrigerator for M/s. Coca-Cola India Pvt. Ltd., M/s. Hindustan Coca Cola their dealers and cleared them on payment of duty on the value determined as per the provisions of Section 4A of the Central Excise Act, 1944. This section provides for payment of duty on the Maximum Retail Price less abatement allowed and applies only to those goods where marking the goods with Maximum Retail Price is mandatory under the provisions of the Standards of Weights and Measures Act, 1976. It appeared that though Refrigerators were in normal course to be assessed to duty on the basis of MRP under Section 4A, the supplies to M/s. Coca Cola etc. should be assessed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clearances of refrigerators to soft drink bottling companies could not be termed as retail sale as per the definition of Retail Sale under section 2(q) of the Standards of Weights and Measures Act. Sales were as per Contract or Purchase order. (e) that reliance is placed on Board s Circular No. 625/16/2002-CX, dated 28-2-2002. (f) That refrigerators were not sold by bottling companies further to retailers but remained the property of bottling companies. 4. Respondent assessee s submissions in Memorandum of Cross objection are briefly as below - On identical issues relating to Electrolux Kelvinator Ltd., the Hon ble CESTAT vide Final Order No. A/895/WZB/2004/CII dtd. 7-10-2004 [2005 (179) E.L.T.214 (Tribunal)] and Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2004 (163) E.L.T. 219 (T) it was held that telephone instruments sold to DOT/MTNL in bulk are retail sales and therefore covered under section 4A. It was also held that such cases were not covered under exemption provided under Rule 34. ITEL case has been followed in following three cases - (A) 2004 (168) E.L.T. 251 (Tribunal) = 2004 (60) RLT 664 (T) - BPL Telecom (B) 2004 (164) E.L.T. 417 - Purisons Engineers (C) Final Order dated 25-2-2004 - Sidwal Refrigeration Inds. It is submitted that the retail sale under PC Rules 1977 envisages sale to consumer. Such consumer can be either an individual or group of individual or any other consumer. The scope of retail sale is not restricted to ordinary member of public alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate and Shri. Joginder Salaria, Manager Finance attended the hearing on behalf of the Respondent assessee. Nobody attended the hearing on behalf of the Appellant Department. The Respondent assessee made following submissions during the hearing. In the review order, department has taken grounds which were not part of the Show Cause Notice. Therefore department s appeal is liable to be set aside on this ground alone. Reliance is placed on - (i) Comteck Laboratories case - 2003(156) E.L.T. 966 (Trib.- Mumbai) and (ii) Toyo Engg. India Ltd., case - 2006 (201) E.L.T. 513 (Supreme Court). Department s appeal is also based on the ground that department has filed appeal against Commissioner, Central Excise, order and ITEL order - 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, I find that in the Show Cause Notice no evidence is available in support of this allegation. In the Grounds of Appeal the department has contended that the word retail sale has been defined under section 2(q) of the SWM Act and the respondents case is not covered under this definition. Department has also placed reliance on Tribunal s judgments in the case of M/s. Bharti Systel Ltd., reported in 2002 (145) E.L.T. 625 and also Board s clarification vide Circular No. 625/16/2005-CX dated 28-2-2002. I find that the respondents case is covered by the ratio of the Tribunal s decisions in ITEL Industries Pvt. Ltd., reported in 2004 (163) E.L.T. 219 (Tribunal). In this case the Tribunal had held sale to DOT/MTNL were indeed retail sale. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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