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TMI Blog2014 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ircuit Breakers (MCCBs) and Plugs and Sockets. The imported plugs and sockets were not individually packed and are received in a carton consisting of 10, 50 or 100 bare plugs and sockets for the purpose of easy transportation. The imported Plugs and Sockets specifically packed for exclusive use and are not intended for retail sale. The goods were assessed to CVD under Heading 85.36 of the First Schedule to the Central Excise Tariff Act, 1985. The goods of heading 85.36 were notified under Section 4A of the Central Excise Act, 1994 vide Notification 13/2002 dated 1st March, 2002 as amended. The department carried out an investigation on the ground that the goods are liable for additional duty of Customs on MRP based valuation under Section4A of Central Excise Act instead of transaction value as claimed by the appellant. Accordingly, investigation was carried out against the appellant and it was found that some of the packaging of the said imported items did not have any marking either endorsed on the inner carton (individual item) or on the outer carton (containing unit quantity of the individual items) or any label affixed on it with any markings. However it was also observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and meet the requirements of lighting, distribution and power circuits. MCCBs are sold though the stockist only. The MMCB sold to Panel Builders and contractors/professionals, which use them either as raw material or for servicing. The stockist are not allowed to sale MCCBs in retail in view of the specific declaration on the package. The Appellants imported MCCB's were having the braking capacity starting from 16KA with 63A. Generally, the household application will need the breaking capacity of maximum, 10KA with 63A. Also, the MCCB's imported by the Appellants were 3 and 4 pole configuration, which cannot be sold in retail for household applications. 4.2.2 The contention is that the department has relied upon the statements of the dealers of the Appellants, viz Shri Arun Bhalachandra Kulkarni, the Manager of M/s. Switch on Electricals, Pune, Shri Rajeev Tulpule, the partner of M/s. Retco Electricals, Pune to hold that the MCCBs are sold in retail. However, in the cross-examination, each of them admitted that the MCCBs were not sold by them in retail. Learned Commissioner re-examined the said witnesses and the said witnesses reiterated that the MCCBs were not sold by them in ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellants on the package of the MCCBs. No retail sale price was required to be declared on the plugs and sockets as they were not in the packaged form. The contention is that there is no provisions in law and to determine the retail sale price in the event of the retail sale price is not declared on the package. They placed reliance on this Tribunal's decisions in the case of ABB Limited reported in 2011 (272) ELT 706, wherein it was held that there is no provisions in the CTA enabling the proper officer to determine RSP in a case where the importer does not declare RSP on the imported package. 4.2.6. So far as the contention of the department is that in view of the stay order of this Hon'ble Appellate Tribunal in the case of Sushil Agarwal, reported in 2012 (283)ELT 337, in which it is held that when the machinery provision is explicitly provided in law there is no bar in adopting a reasonable provision to make the law operation by relying upon the judgment in the case of Mahim Patram Pvt. Ltd. V/s. UOI reported in 2007 (7) STR 110. The contention of the appellant is that in the case of Sushil Agarwal (supra) is admittedly an order passed on an application under Section 129E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of abatement. If all these factors are applicable to any goods, then alone the valuation of the goods and the assessment of duty would be under Section 4A of the Act." 6.1.1 The department could not show that the aforesaid factors are applicable to imported plugs and sockets. Therefore the learned Commissioner's order regarding the assessment for the purpose of CVD in case of plugs and sockets is not sustainable and hence set aside. 6.2 So far as MCCBs are concerned undisputedly the MCCBs imported by the Appellants are not commodities in packaged form and the packing is meant only for the purpose of ease of transportation. From the capacity rating of the MCCBs also it is revealed the MCCBs are not intended for retail sale. The persons on whose statements the department relied upon in the cross-examination/re-examination they stated that the MCCBs were not sold by them in retail. From the three invoices relied upon also the department could not establish that the goods were meant for retail sale. 6.2.1 Admittedly the appellant made the following declaration on the packages of MCCBs:- "Imported & specially packed for the exclusive Use in any industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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