TMI Blog2004 (1) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1985, as claimed by the assessee or under sub-heading 8539.90, as alleged by the Revenue. 2. The appellant in Appeal No. E/2310/2003, M/s. Alwar Lamps Pvt. Ltd. is engaged in the manufacture of Auto Bulbs of various sizes and voltage/wattage falling under Heading 85.39 under the brand name Autopal . The said bulbs were cleared by them in retail packing as well as in bulk industrial packing on payment of appropriate rate of duty. While so, a show cause notice dated 5-7-2002 was issued with the allegation that auto bulbs supplied to OE manufacturers and State Machinery Corporation (STC) in industrial packing were classifiable under sub-heading 8539.90, that only goods in retail packing having printed retail sale price not exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no dispute regarding bulbs, which are sold in retail as they are classified under sub-heading 8539.10 and assessed accordingly. As mentioned earlier the dispute relates only to the bulbs sold to various OE manufacturers. It is also not dispute that the bulbs which were sold in bulk were priced at the rate below Rs. 20/- per piece. In spite of the contentions raised by the assessees that such goods are liable to be classified only under Heading 85.39 the Assessing Authority was inclined to confirm the demand. In the appeal filed by M/s. Alwar Lamps Pvt. Ltd. challenge is against the order passed by the Commissioner dated 27-3-2003. In the case of M/s. Design Auto Systems Ltd. the Commissioner (Appeals) took the view that since the bulbs so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 8539.10. Note 7A to Chapter cannot in any way change the classification. Note provides that the expression retail sale price has the meaning assigned to it in Section 4A of Central Excise Act. Term retail sale price has been defined in the Explanation under Section 4A as follows :- For the purposes of this section, retail sale price means any maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale. In order to get classified under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold to OE manufacturers cannot be classified under 8539.10. 8. The Commissioner (Appeals) has placed reliance on the decision of this Tribunal M.V. Enterprises v. Commissioner of Customs, Lucknow - 2002 (141) E.L.T. 501 in support of the view taken that so long as requirements of Section 4A of the Act are not satisfied in the case of bulbs sold to OE manufacturers, they cannot be classified under sub-heading 8539.10. It has also been pointed out by the Commissioner (Appeals) that the appeal filed from the above decision of the Tribunal had been dismissed by the Hon ble Supreme Court in 2002 (143) E.L.T. A81. A reading of the above order of this Tribunal would show that the contention raised by the assessee in that case was entirely diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have the effect of incorporating the entire Section 4A but only the definition of retail sale price as provided under Section 4A. It was in background of above facts and contentions raised by the parties, we took the view that the footwear cannot be classified under the Excise sub-heading 6401.12. In the present case, as mentioned earlier, there is no dispute on the issue that the bulbs are sold at retail price below Rs. 20/- per bulb and the appellants have taken a specific contention that Chapter Note 7A would not have the effect of incorporating the entire Section 4A but only the definition of retail sale price in Section 4A. As mentioned above, we are inclined to accept the above contention raised by the appellants. 9. In the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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