2003 (9) TMI 501 - AT - Central Excise

Summary

Issues: Whether a marketable plastic bottle comes into existence during the manufacture of an intravenous infusion, known as Haemaccel, falling under Chapter 30, manufactured with a 'form, fill and seal machine'.

Analysis:
1. Issue of Marketable Plastic Bottle Existence: The appellant argued that during the manufacturing process of Haemaccel using a form, fill, and seal machine, a marketable plastic bottle does not come into existence. The plastic pouch is filled with medicine when the plastic is still hot, and the container is sealed and molded without a cap that can be opened. The appellant referenced the Rommelag machine's working principle to support this claim. Additionally, the appellant cited a previous judgment by the Tribunal and a Circular by the CBEC to emphasize that the container formed in the machine cannot be marketed separately.

2. Applicability of Circular No. 11/89: The Tribunal considered Circular No. 11/89 issued by the CBEC, which clarified that a container formed in a machine, incapable of being marketed separately, does not need to be assessed as a separate product. After reviewing the case records and arguments from both sides, the Tribunal found the circular directly applicable to the appellant's case. Consequently, the Tribunal set aside the impugned order and allowed the appeal, ruling in favor of the appellant.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Mumbai addressed the issue of the existence of a marketable plastic bottle during the manufacturing process of Haemaccel using a form, fill, and seal machine. The Tribunal relied on the appellant's arguments, supported by references to the machine's working principle, a previous Tribunal judgment, and a CBEC Circular to determine that the container formed in the machine cannot be marketed separately. As a result, the Tribunal set aside the impugned order and allowed the appeal based on the applicability of Circular No. 11/89 to the case.