9911796707
TMI Blog2002 (7) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Rule 173B of Central Excise Rules, 1944 with effect from 1-3-2000 in which they claimed the exemption on the PET bottles under Notf. No. 67/95-C.E., dt. 16-3-95 as amended. They declared that the entire PET bottles manufactured by them in their factory will be captively consumed as packing material for the final product. The party was however issued a show cause notice dated 26-3-2001 by the Deputy Commissioner of Central Excise, Calcutta-D Division in which it was alleged that the exemption under Notf. No. 67/95-C.E., dt. 16-3-95 was available on the specified capital goods and the inputs manufactured in a factory and used within the factory of production in or in relation to the manufacture of specified final products; that for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the said Act; that thus condition No. (ii) of Notf. No. 67/95-C.E., dt. 16-3-95 has not apparently been fulfilled. Thus the PET bottles cleared by the assessee from their said factory during the said period are not entitled for availing the said exemption; that hence the Central Excise duty of Rs. 47,74,446.00 is liable to be recovered from the noticee party in respect of the PET bottles cleared during the period from 1-3-2000 to 30-11-2000. It is further alleged that they have also wrongly availed the Modvat/Cenvat credit of Rs. 11,851.00 on the raw material viz. polyester perform during the said period i.e. March, 2000 to November, 2000 inasmuch as they utilized the said raw materials in manufacturing a good number of bottles cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 57-I and Rule 57AH of Central Excise Rules, 1944. 2. On considering the reply of the party, the Commissioner of Central Excise, Calcutta, vide his order dated 31-10-2001 confirmed the Central Excise duty of Rs. 47,74,446.00 on the appellants under Section 11A of the Central Excise Act, 1944. He further confirmed the duty of Rs. 9,419.00 on them for the clearances made for a period of 30 days of the date of passing his impugned order. He also imposed a penalty of Rs. 5 lakhs on the appellants under Rule 173Q of Central Excise Rules, 1944. He, however, dropped the demand of Rs. 11,851/- with the observation that once PET bottles are dutiable - the Cenvat credit on law materials i.e. plastic perform for these bottles cannot be denied. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no scope of this exemption for PET bottles manufactured by the assessee and captively consumed for packing of the final products. Shri V. Lakshmikumaran, ld. Advocate for the appellants submits that the condition in the notification as mentioned under the explanation is only applicable if the finished products are chargeable to duty under Section 4 of the Act and in such case the value of the packing material is to be included in the value of the finished products. It is contended that the explanation did not say that the benefit of the notification would not be available if the finished products are chargeable to duty under Section 4A or at specific rate of duty. In support of this contention the reliance is placed on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the packaging material or containers, the cost of which is not included in the assessable value of the final products under Section 4 from the definition of inputs relates to the final products assessed to duty under Section 4 and not to any other mode of assessment. The Commissioner has clearly misdirected himself by applying the above exclusion clause to the assessment being made in terms of the provisions of Section 4A concerning the present appellants to which this clause has no relevance. The notification otherwise exempts all specified inputs manufactured and used in the manufacture of specified final products in the same factory barring the once falling in the exclusion Clauses (i) and (ii) under the Explanation to the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
