- (1.) The Respondents herein are engaged in the manufacture of auto bulbs of various sizes and voltage wattage under the brand name 'Antopal' falling under entry 85.39. The issue arising for consideration is whether the bulbs manufactured by the Respondents and cleared to OE manufacturers are to be classified under entry 8539.10 of the Central Excise Tariff Act, 1985, as claimed by the Assessee or under entry 8539.90, as alleged by the revenue. It is clear that both the entries, viz., 8539.10 and 8539.90 fall under the same Chapter, viz., 85.39. The relevant entries read as under: "85.39 Electric filament or discharge lamps, including sealed beam, lamp units and ultra-violet or infrared lamps; Are lamps 8539.10 Vacuum and gas filled bulbs of retail sale price not exceeding Rs. 20 per bulb. 8539.90 Other"
(2.) In the present case, as pointed out above, the Revenue has taken the position that the goods of the Respondent-Assessee fall under Entry 8539.90 that is "other" and on this, the rate of duty is 16 per cent, whereas for the goods falling under entry 8539.10, the rate of excise is 8 per cent. On this ground, the Revenue issued a show cause notice dated 5-7-2002 demanding the excise duty of Rs. 33,20,015/- as well as equivalent amount of penalty Under Section 11AC of the Central Excise Act, 1944. Penalty was also demanded Under Section 173Q of the Central Excise Rules, 1944, read with Rule 25 of the Central Excise (No. 2) Rules, 2001 and Rule 25 of the Central Excise Rules, 2002.
(3.) The Commissioner, after adjudication, passed the final order dated 27-3-2003 confirming the aforesaid demand and also imposing an equivalent amount of penalty. The view of the Commissioner was that in order to claim classification under Entry 8539.90, it was mandatory to mention the MRP on the pack of bulb which was not mentioned by the Respondent in the instant case. For this purpose, the Commissioner referred to Note 7A of Chapter 85 which reads as follows: "For the purpose of the Chapter, the expression 'retail sale price' has the meaning assigned to it in Section 4A of Central Excise Act, 1944 (1 of 1944).";