JUDGMENT

Rajendra Babu, CJI.-A show cause notice was issued to the appellant by the Commissioner of Central Excise demanding duty of Rs. 2,07,64,870.16 for the period from 1.7.1998 to 31.1.1999. The appellant complied with the demand under protest without prejudice to their contentions and filed a reply to the show cause notice contesting the various points raised therein. The Commissioner ultimately gave a finding that the goods in question had been removed from the place of manufacture without printing the retail sale price as it was mandatory for them to print the price once the goods are cleared in packed condition as per requirement of Standards of Weights and Measures Act, 1976. It was admitted that it was only stock transfer to the depots of the appellant from the factory gate and retail price was printed at their depots. The appellant contended that stock transfer is not sale of goods in their case and actual sale of goods took place from their depots and before putting the goods in question for sale in the market they had been printing retail sale price on their goods and when the goods were sold these were having printed retail sale price. They also contended that the printed retail sale price was the sole consideration as they had launched an exchange scheme; that the goods were sold in the market with the printed sale price in packed condition; that central excise duty was not leviable at ad valorem basis @ 18% on all different models of television sets manufactured by them. These contentions were rejected by the Commissioner.

2. On appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) against the order of the Commissioner, it was held that colour T.V. is an item in relation to the sale of which the provisions of the Standards of Weights and Measures Act and Rules made therein to declare the retail sale price on their packages would be attracted and that under Section 4-A(2) of the Central Excise Act, 1944 excise duty is liable to be paid at the applicable rate with reference to the retail sale price after effecting the abatement from the retail sale price as specified in the said provision and, therefore, the Tribunal held that the CTVs are subject to duty @ 18% ad valorem.

3. As regards offer of gifts made by the appellant, it was stated that notwithstanding free gifts offered by the appellant to the buyers on the sale of TV sets, the sale price charged from the buyers will not cease to be the sole consideration for such sale and, therefore, the Tribunal affirmed the findings of the Commissioner that it was mandatory for the appellant to print the maximum retail price on the package at time of clearance from the factory as per the requirement of Standards of Weights and Measures Act, 1976 and it was the sole consideration for sale. The Tribunal also noticed that the appellant is only stock transferring their goods from the factory to their depots and retail price was printed at their depots; that the stock transfer is not sale of goods, actual sale of goods took place from their depots and when the goods were sold these were having printed retail sale price on the packages; that this printed retail sale price was the sole consideration for the sale of the goods and the central excise duty was leviable @ 18% ad valorem on the CTVs as provided in the relevant notification issued under Section 4-A(a) of the Act.

4. As regards the contention put forth by the appellant that the appellant were of bona fide belief that their case was not covered by the expression "the retail sale price being the sole consideration for such sale" and the price had not been printed at the time of clearing the goods and they had indicated so in their letter to the concerned authorities, the Tribunal took note of the fact that the appellant should have printed the maximum retail price on the packages before clearing the goods from their factory; that in order to bye-pass the rigors of the