TaxTMI 
TaxTMI 
2006 (12) TMI 398
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....2004. 2. Briefly stated the facts of the case are that the respondent are manufacturing Refrigerators under 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 assesse....
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.... (c) that reliance is placed on the judgments in the case of M/s. Bharti Systel Ltd v. CCE, Chandigarh - 2002 ( 145 ) E.L.T. 626 (Tri.-Del.) (d) that 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....
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....d M/s. Hindustan Coca Cola and Soft Drink manufacturer are not retail sales and therefore section 4A is not applicable. It is settled legal position that review cannot take up an entirely new ground in the appeal while reviewing the order of the lower authority. * In ITEL case - 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 - Puriso....
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....'s decisions in Bharti Systel case - 2002 (145) E.L.T. 626 (T) and CEBC circular dated 28-2-2002. It is submitted that in ITEL case the Tribunal has distinguished the decision in Bharti Systel case and CBEC circular dtd 28-2-02. In view of the above submissions review appeal is liable to be set aside. 5. Personal hearing was fixed on 20-12-2006. Shri Bharat Raichandani, Advocate 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. Theref....
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....Pvt. Ltd., M/s. Hindustan Coca Cola and their bottler/dealers on the basis of purchase orders cannot be termed as retail sale to ultimate consumer. Thus, it appears that the assessee should have determined value of the excisable goods under section 4 of the Act and paid Central Excise duty accordingly." 7. As regards merit of department's allegation that sale effected by the Respondent assessee is not retail sale is concerned, 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 plac....