1. The applications are for waiver of pre-deposit of duty and penalty imposed in the impugned order. The dispute relates to the applicability of higher MRP on the Air Conditioners cleared at the factory gate at Silvassa. It is submitted that the air conditioners sold at the factory gate are declared with MRP of Rs. 21,000/- while those which are cleared from depots are declared with MRP of Rs. 22,478/-. The Adjudicating Authority proceeded to adopt the higher MRP in respect of the sales effected at the factory gate by ignoring the declared MRP of Rs. 21,000/-.
2. Heard both sides. The ld.counsel invited our attention to the explanation (1) of Section 4A of the Central Excise Act and subsequent explanations 2(a) and 2(b). It is the submission of the applicant that on the packages of air conditioners cleared at the factory gate, a single MRP of Rs. 21,000/- was affixed. The ld.DR justifies the order of the Commissioner by inviting our attention to explanation (1) to Section 4A to state that the Retail Sale Price means the "maximum price" at which the excisable goods in packaged form may be sold to the ultimate consumers. It is the department's case that when more than one retail prices are affixed the consumer in the same area will get the air conditioners at the higher price as well as at the lower price at the factory gate depending upon the source from which he had obtained the goods. Therefore, according to the (SIC) the higher price adopted by the Adjudicating authority is supported by law, being the "maximum price".
3. We have heard the rival contentions. It is true that the explanation (1) to Section 4A authorises adoption of maximum price from amongst the several declared prices. However, this explanation has to be read in conjunction with the subsequent explanations ie. 2(a) and 2(b). It is apparent, that on the package for sale of the factory gate, only one retail sale price is declared, which is Rs. 21,000/-. In terms of this explanation, the case for referring to any other price would not arise.
We note that the explanation 2(b) will not come into play in this case for the reason that on a package different prices for sale for different areas are not declared.
4. Accordingly, we hold that the applicants have made a strong prima facie case for waiver of pre-deposit of the amount of duty and penalty.
Therefore, pre-deposit of the entire duty demand and the penalty are waived and recovery thereof stayed, pending disposal of the appeals.