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TMI Blog1994 (11) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... set each of Biscuit Cream Sandwiching Machine. M/s. Bakeman's Home Products had imported the machine under Bill of Entry No. 003932, dated 9-2-1990 and M/s. Farm House Biscuits Co. Ltd. under Bill of Entry No. 003986, dated 11-4-1990. He pleaded that these machines were imported from USA and the value of each machine was declared at US $ 3,06,495. He pleaded that the appellants had claimed assessment under Heading 8422.40 as Packing & Wrapping Machine composite unit and had claimed benefit of Notification No. 125/86-Cus., dated 17-2-1986 and the value of the other food processing machinery declared as per invoice is US $ 77,030. He pleaded that for the other food processing machinery, there is no dispute and it is an admitted position. Regarding wrapping and packing machinery, he pleaded that as per Revenue the value is at US $ 1,46,000 and the balance of duty is under different headings. He referred to the invoice dated 16-5-1989 which appears on Page 108 of the paperbook in the case of M/s. Bakeman's Home Products and the total value as per invoice is US $ 3,83,525 C.I.F. Bombay and the value of the Cream Sandwiching Machine is US $ 77,030. He referred to Page 149 of the paperboo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000 4. Sh. Rajiv Kumar 2,00,000 5. Sh. Pankaj Aggarwal 1,00,000 Shri N.R. Khaitan, the learned Advocate argued that the demand is hit by limitation. He pleaded that in the case of M/s. Bakeman's Home Products, Bill of Entry is dated 9-2-1990, the duty was paid in March, 1990 and the Show Cause Notice is dated 25-6-1993 and in the case of M/s. Farm House Biscuits Co. Ltd., Bill of Entry is dated 11-4-1990, the duty was paid on 11-5-1990 and the Show Cause Notice is dated 25-6-1993. He argued that the goods were finally cleared in accordance with law after payment of appropriate duty and thereafter, the notice under Section 124 of the Customs Act, 1962 was issued for short payment of duty under Section 28 of the Customs Act read with provisions of the said Section. He fairly stated that the Bill of Entry was filed with catalogue, packing list and invoice. He further stated that in respect of M/s. Farm House Biscuits Co. Ltd., the seizure took place on 4-1-1993 and M/s. Bakeman's Home Products on 8-1-1991 and for keeping the business running, the appellants, as a bona fide tax payer, have paid Rs. 3 lakhs each in cash in the case of Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calation of prices of wrapping machine and as such, the extended period of limitation has been rightly invoked. He referred to the US Customs' observations which appear on internal page 17 of the Show Cause Notice. He argued that the value of one part has been suppressed and the other part has been shown higher for claiming the benefit of notification. In support of his arguments, he cited a decision of the Tribunal in the case of Air Control & Chemical Engg. Co. Ltd. v. Collector of Central Excise, Ahmedabad, reported in 1994 (72) E.L.T. 291 (Tribunal). He referred to the correspondence. He pleaded for the rejection of the stay application. In reply, Shri N.R. Khaitan, learned Advocate again pleaded for the acceptance of the stay application. 3. We have heard both the sides and have gone through the facts and circumstances. The facts are not disputed. It is an admitted position that the product in dispute is one set each of Biscuit Cream Sandwiching and Wrapping Machine imported by M/s. Bakeman's Home Products and M/s. Farm House Biscuits Co. Ltd. Two Bills of Entry were filed for both the products and both the Bills of Entry are similar and Shri N.R. Khaitan, learned advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The HSN explains the Heading 84.22 as machines which in addition to packing, wrapping etc., also perform other operations remain classifiable in the Heading provided the additional operations are incidental to the packing etc. Thus, machines which pack or wrap goods into the forms or presentations in which they are normally distributed are sold in commerce, are classified in this Heading, whether or not the machines also contain devices for weighing or measuring. It also includes machines incorporating devices which as a secondary function, cut, mould or press previously prepared products into purely presentation forms without affecting their essential character. Therefore, while in the process of wrapping or packing, any secondary function like cutting butter or margarine into blocks would also get covered by this heading. The view held by the Revenue that each machine can function independently will not preclude the benefit of exemption as the entire operation is done by synchronising each of the machines to achieve the single object of aseptic packaging. Therefore, it is eligible to the benefit of the said notification." In the present matter before us, as already pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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