ALWAR LAMPS PVT. LTD. Vs. CCE, JAIPUR

JUDGEMENT

(1.) IN these appeals at the instance of the assessee the issue arising for consideration is whether the bulbs manufactured by the appellants and cleared to OE manufacturers are to be classified under sub -heading 8539.10 of the Central Excise 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 exceeding Rs. 20 per bulb were classifiable under sub -heading 9539.10 of the Tariff and that the appellant had mis -classified the said goods supplied to OE manufacturers and STC under sub -heading 8539.10 of the Tariff, though it were classifiable under sub -heading 8539.90 of the Tariff as the said goods were not sold in retail and they did not have any printed retail sale price.

(3.) BULBS falling under Heading 85.39 were notified under Section 4A of the Central Excise Act for assessment based on the retail sale price affixed on the package of such bulbs as per requirements of Standards of Weights and Measures Act, 1976 read with the Rules made thereunder. There is 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. In the case of M/s. Design Auto Systems Ltd. The Commissioner (Appeals) took the view that since the bulbs sold to OEM were not sold in packing bearing retail sale price, that the goods sold by the appellants on the basis of contract price which cannot be regarded as retail sale price and, therefore, notwithstanding the fact that such contract price was not exceeding Rs. 20 per piece, the goods sold to OEMs cannot be classified under sub -heading 8539.10. The Commissioner (Appeals), therefore, upheld the classification of the goods under Chapter Heading 8539.90 attracting Central Excise duty at the rate of 16%. Reliance was placed on the provisions contained under Note 7A of Chapter 85 in support of the stand taken by the Revenue.