9911796707
TMI Blog2002 (5) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... with other proviso of the Act. 2. The Commissioner after detailed examination of the facts agreed with the assessee that they were only buying fresh milk from the market and evaporate the same to reduce the water contents which in turn, was used in their process to manufacture confectionery. Assessee s contention that the item was not concentrated (condensed) milk whether sweetening or not and it was not leviable for classifying under Chapter 4 and it was not put up in unit containers and not intended for sale as laid down in the said sub-heading was accepted by the Commissioner (Appeals). He noted that assessee was clearing the said item in empty liquid glucose drums and they were not intended for sale and the said drums were not unit containers as it did not have any specific measurement. The Board s Circular No. 11/88, dated 24-3-88 was also relied. He noted their submission that the item still contained 80% moisture which is removed to the job worker under proper challans. The job workers were collecting job charges and duty was paid in terms of Apex Court judgment rendered in Ujjagar Prints they were reducing the milk content as it did not contain various enzymes and other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing process was marketable. But in arriving at the said finding the Tribunal has taken into account only the material that was placed by the Departmental Representative. The Tribunal has not taken into consideration the material that was placed by the appellant to show that the Acetylene gas that was produced contains impurities in excess of the permissible limit which renders it highly explosive and dangerous for handling and transport and that it is not marketable in the conditions prevalent in this country. The finding recorded by the Tribunal that the Acetylene gas that is produced during the course of manufacture of calcium carbide was marketable cannot, therefore, be upheld and the matter has to be remitted to the Tribunal for recording a fresh finding on this question keeping in view the material that has been placed by the appellant in that regard. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside and the matter is remitted to the Tribunal for considering the question whether the Acetylene gas that is produced in the factory of the appellant during the course of manufacturing of calcium carbide and Acetylene Black is marketable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wrong to conclude that only condensed milk to be in sealed container of 500 gms. 1 Kg., 2 Kgs. or 5 Kgs. denominations only will have marketability as these are placed in retail shops for being sold to consumers for production of sweets or ice-cream. He contended that in both kinds of sales marketability existed. Only if condensed milk is spoiled on account of being non-hygenic, not properly protected, or exposed to bacteria, it will not be marketable, while in the present case, it was being cleared to job worker which itself showed that it was marketable. He prayed for setting aside the order and confirming the Order-in-Original. 5. Ld. Senior Counsel, Shri M. Chandrasekar assisted by Shri A. Vijayaraghavan contended that there was no sale nor the item intended for sale and neither it was condensed milk in the form in which it is marketed and sold in the market. It is not packed in unit containers and hence it does not satisfy the conditions laid down in Chapter heading 0401.14 for classifying the item as concentrated (condensed) milk whether concentrated or not put up in unit container and ordinarily intended for sale . He points out to the finding recorded by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in M.P. Vegetable Fruits Products v. CCE, Raipur, 1995 (76) E.L.T. 393 (T) wherein the Tribunal held in para 5 of its order that Tomato Puree should be packed in unit containers and intended for sale for classifying to be under sub-heading 2001.10. As they were cleared in barrels or drums, they would not come under the heading required for classifying such item put up for sale in unit containers and hence the residuary sub-heading 2001.90 was adopted by the Tribunal. He also referred to the Allahabad Collectorate Trade Notice No. 38/86 dated 9-9-86 which also clarified the classification of fruit juice in jerry cans and noted that expression ordinarily intended for sale , applies only to unit container in which sale actually takes place, and would not refer to the sale of the product itself which may ultimately take place in different containers, Unit containers means a container in which prepared or preserved food is intended to be sold by the manufacturer and it may be a small container like tin, can, box, jar, bottle or bag in which the product is sold by retail, or it may be a large container like drum, barrel or canister in which the product is packed for sale to othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue. In the SCN, the Commissioner (Appeals) has looked into all the papers and has taken into consideration, including the ruling of the Apex Court to arrive at a correct conclusion that the item is not marketed as condensed milk and it is put up in unit container is satisfied and the Tariff and it is not intended for sale. He also noted from the judgment cited that the item has to be put up in a unit container as has been described and discussed in the Agro Foods Punjab Ltd. in para 9 which is extracted herein below :- 9. On going through the expression Unit Container and Tariff entries of old IB and new Tariff entries, we find that though the term Unit Container was not inserted in the old tariff, still as such it was discussed in thread bare with reference to notification and instructions issued by the Ministry in the decision of M/s. HPMC. Further the description of tariff which was consolidated under old Tariff IB has been distributed in the several Chapters under Section IV in the new Tariff Act. But in substance it remains the same. There is no material change in the description of tariff entry except bifurcation and distribution under different sub-headings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that unless horlics is put up in unit containers, it is not marketed in terms of tariff description. This judgment applies to the facts of the present case. Likewise the rulings of the Tribunal in the case of Agro Foods Punjab Ltd. (supra) and M.P. Vegetable Fruits Products v. CCE (supra) also apply to the facts of this case. A doubt pertaining to the classification of fruit juice which is put up in unit container and ordinarily intended for sale is also clarified by the Allahabad Collectorate by Trade Notice No. 38/86, dated 9-9-1986 which is also extracted herein below :- FRUIT JUICE IN JERRY CANS [CHAPTER 20] A doubt has been raised as to whether fruit juices removed by the assessee in jerry cans and sold in open glasses of 200 ml through vending machines, could be covered under sub-heading 2001.10 of Central Excise Tariff which, inter alia, covers, fruit juices put up in unit containers and ordinarily intended for sale. 2. It has been observed that the expression ordinarily intended for sale , applies only to unit containers in which sale actually takes place, and would not refer to the sale of the product itself which may ultimately take place in different contain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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