Judgment:
1. The appellants are manufacturers of auto bulbs. These fall under sub-heading No. 8539 of the Central Excise Tariff. The appellants claimed the classification under sub-heading No. 8539.10 whereas the department claimed classification under sub-heading No. 8539.90 and confirmed the demand of duty for Rs. 33,20,015. The appellants have sold the said bulbs in bulk to original equipment manufacturers of automobiles at the price of Rs. 8 per bulb. The sub-heading No. 8539.10 is applicable to "vacuum and gas filled bulbs of retail sale price not exceeding Rs. 20 per bulb. The dispute is that since the said bulbs have been sold in bulk and not in retail, the sub-heading No. 8539.10 is not applicable and hence the duty as demanded is leviable. The appellants plead that, they have a strong prima facie case on merit in their favour and hence they may be granted total waiver of pre-deposit of duty and penalty as demanded in the impugned order.
3. We have perused the order of the Ld. Commissioner. There is no allegation that the retail price of the bulbs manufactured and sold in retail is exceeding Rs. 20. The retail price of Rs. 8 per piece as declared is also not challenged. The only ground for denying classification under sub-heading No. 8539,10 is that, the sale is not in retail but in bulk and retail price is not affixed on the individual bulbs as required under the Standards of Weights & Measures Act, 1976.
Reliance was placed by the appellants on Board's Circular No.625/16/2002/CX., dated 18.2.2002, wherein it has been clarified that, in cases where the products are partly sold in bulk and partly on the basis of retail price, in terms of Section 4A, then valuation has to be done in accordance with Section 4 of the Act for quantities sold in bulk. This circular was not considered, to help the appellants.
4. For the limited purpose of waiver of pre-deposit, the issue is whether Sub-heading No. 8539.10 is applicable. On reading of the said entry, Sub-heading No. 8539.10, it prima facie appears that the appellants are required only to demonstrate that the retail sale price does not exceed Rs. 20 per bulb. From the impugned order, we are unable to see that the retail price has been shown to exceed Rs. 20 per bulb.
Therefore, we are satisfied that, the appellants have a strong prima facie case on merit to grant total waiver of pre-deposit of duty and penalty as demanded under the impugned order. Accordingly, we waive the pre-deposit in toto and grant stay prayed. The matter is listed for regular hearing on 17.12.2003.