9911796707
TMI Blog1999 (10) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... uty on the impugned metal containers and that they were eligible to benefit of Notification No. 181/88-C.E. Nowhere the appellants have contended as to how they could not be called upon to discharge their duty liability on the metal containers used by them in the packing of Sapan Milk Special - partially skimmed powder . Notification No. 181/88-CE exempts metal containers and parts thereof (other than those of aluminium), if they were intended to be used for packing of skimmed milk powder, subject to specifications. It has been the appellant s claim that their Partially skimmed milk powder is different from skimmed milk powder and their appeal has been allowed on this point by the CEGAT. In view of this fact no exemption under the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court and the adjudicating officer having gone by extraneous considerations are misplaced arguments on their wrong and prejudiced perception of facts of this case. The fact is that as per the applicable and operative decision of the CEGAT, the appellant s product is not to which the exemption is available to the metal containers under Notification No. 181/88-C.E.; the fact is that this exemption cannot be availed on the plea that the Department has gone in appeal; the fact is that the adjudicating officer has gone by the facts of this case and not by any extraneous considerations since if the Supreme Court could have stayed the CEGAT decision, then the appellants product would have perhaps continued to be not different from the skimmed mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally skimmed milk powder classifiable under sub-heading 0401.19 of the Tariff and is different from skimmed milk powder; that initially the Department accepted the claim of the appellant and approved the classification of the said goods under sub-heading 0401.19. The Asstt. Collector held that the goods manufactured by the appellants were classifiable under sub-heading 0401.13 as skimmed milk powder; that pursuant to this finding various demands were confirmed. Ld. Counsel submitted that the ld. Collector (Appeals) confirmed the order passed by the ld. Asstt. Collector; that the Department had issued a certificate for procurement of metal containers at Nil rate of duty under Chapter X procedure under Notification No. 181/88 for the intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision held that : In the above circumstances, the error is required to be rectified and therefore, the operative portion of the order is hereby modified to say that there was no misdeclaration or suppression of facts or violation of Rule 196 as the containers received under bond had been undisputably utilised for packing the above product and the bond itself, therefore, stood discharged to the extent of the quantity so utilised. The net result of the correction of the above error is that the appeal stands accepted. It is ordered accordingly. Ld. Counsel therefore, submitted that provisions of Rule 196 of the Central Excise Rules can be invoked only, if any, excisable goods obtained under Rule 196 are not duly accounted for as having b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 cannot be invoked as there was no failure to account for the goods brought under Chapter X in terms of Notification No. 181/88. We also note that though the provisions of Notification 181/88 were not applicable to the goods of the appellant, however, the demand, if any, could be raised elsewhere and not under Rule 196 as 196 speaks only of complete accounting of the goods. In the instant case there was complete account of the goods. The goods were used or intended for use for packing the product which the applicant cleared on payment of duty. Having regard to these facts we set aside the impugned order and allow the appeals. Consequential relief, if any, shall be admissible to the appellants in accordance with law. EDITOR S COMMENTS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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