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TMI Blog1995 (7) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1985 (hereinafter referred to as the `Tariff ), which is a residuary sub-heading of residuary Heading No. 39.22 of the Tariff. It covered other articles of plastics and articles of materials of Heading Nos. 39.01 to 39.14". It was pleaded that definite process of manufacture takes place, and that the ultimate product that is poly pouches emerged as an identifiable product from the poly films which are the raw materials, and that the goods in question were capable of coming to the market to be bought and sold. 2. The matter was posted for hearing on 2-1-1995 when Shri Sharad Bhansali, SDR appeared for the appellants - Revenue. Shri S.K. Kohli, Advocate represented the respondent-assessee. 3. Shri Sharad Bhansali, the learned SDR stated that the poly pouches are goods and are marketable. They are also not eligible for exemption under Notification No. 132/86-C.E., dated 1-3-1986. He relied upon the Tribunal s decision in the case of Tirupati Foams Private Limited v. Collector of Central Excise, Ahmedabad, 1994 (72) E.L.T. 770 (Tribunal), which had been confirmed by the Hon. Supreme Court as reported at 1994 (71) E.L.T. A-23. 4. Shri S.K. Kohli, the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pouch with milk filled therein is cut. In other words, while sealing and cutting the upper end of the pouch (with milk filled therein), the next lower end of the empty tube is also sealed simultaneously. Thereafter, the milk is poured in the empty one side open pouch, and simultaneously the upper portion is sealed, milk pouch cut and the lower end of the running empty tube is also sealed. This process goes on till the film roll in the form of two side open tube is exhausted. Then the next roll is mounted on the machine, and so on. After mounting of the roll, the whole process is automatic and simultaneous and the pouring of liquid milk and conversion of the two side open film tube, into a milk filled pouch is instantaneous, where as soon as the lower portion is sealed the milk is filled, and as soon as the milk is filled, the upper portion of the milk pouch is sealed; and this process goes on and on. After the upper portion is sealed it is no more an empty container but a milk pack. After the milk packet reaches the consumer, the milk is taken out and the used pouch is discarded. 6. The Additional Collector of Central Excise, Chandigarh, who adjudicated the matter had come to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose goods which are mentioned in the tariff item. Para 7 from that judgment is extracted below :- 7. The duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, moveable, saleable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for taking such goods to the market for sale. The obvious rationale for levying excise duty linking it with production or manufacture is that the goods so produced must be a distinct commodity known as such in common parlance or to the commercial community for purposes of buying and selling. Since the solution that was produced could not be used as such without any further processing or application of heat or pressure, it could not be considered as goods on which any excise duty could be levied. 8. We have given the process by which liquid milk is filled in the poly pouches on a machine which forms the pouch, fills the milk and seals the filled pouch, in a continuous, automatic process. The facts do not substantiate the argument made on behalf of Revenue that the poly pouches emerge as an identifiable product and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in between the polymers of ethylene in primary form, and the milk filled poly pouch has been manufactured out of such duty paid films. 13. Both the Additional Collector, Chandigarh, who had passed the impugned order before us, and the Collector of Central Excise, Chandigarh who had adjudicated the similar matter but for a different period, had referred to the Trade Notice No. 27 (MP) Plastics/2/86, dated 24-4-1986 of the Central Excise Collectorate Bombay-III wherein it was clarified that exemption to articles of plastics (sub-heading No. 3922.90) would be available under Serial No. 3 of the Table annexed to Notification No. 132/86-C.E., dated 1-3-1986 even if at the intermediate stage in the manufacture of such articles of plastics any other product falling within Chapter 39 emerges so long as such articles are made out of the goods falling under Heading Nos. 39.01 to 39.15 on which excise duty or the additional duty under Section 3 of the Customs Tariff Act, has already been paid. 14. Taking all the relevant considerations into account, we do not find any infirmity in the Order-in-Original passed by the Additional Collector of Central Excise, Chandigarh, and accordingly we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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