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TMI Blog2002 (12) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ported for manufacturing of aseptic packaging material for packaging of pharmaceuticals with the aid of Aseptic Form Fill Seal Machine/Machines. M/s. Parenteral Drugs (I) Limited were claiming benefit of this notification for imports of polypropylene and polypropylene granules. The benefit was subject to the following conditions, namely : (a) the said imported goods shall be used for the purpose specified above; (b) he possesses Aseptic Form Fill seal Machine/Machines; (c) the said packaging materials manufactured out of said imported goods conforms to the specifications laid down in Indian Standard 7803 (Part II) 1975; and (d) he shall pay, on demand, in the event of his failure to comply with the requirement specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not done on one machine. One machine formed the bottle. The bottle was transferred to the other machine which filled the bottle with medicament and sealed. Show cause notice was issued alleging that having two machines the condition (b) of the notification reproduced above was not fulfilled. It was observed that the movement of the bottles in between the two sets of machines was manual and through open air and therefore the goods could not be termed as aseptic . In this belief differential duty for the period 29-4-1991 to 15-4-1993 was demanded invoking the proviso to Section 28(1)(b) of the Customs Act, 1962 read with proviso (d) of the notification. It was also alleged that penalty was leviable on the assessees. The Commissioner aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was issued seeking denial of the benefit of the said notification. The Commissioner of Customs heard the assessees. The arguments made were essentially the same as were earlier made. Reference was invited to Notification No. 23/95 which had done away with the phraseology on which the earlier dispute had arisen. It was claimed that the notification was retrospectively applicable. The Commissioner held following the Supreme Court judgement in the case of Johnson Johnson Ltd. v. CCE 1997 (92) E.L.T. 23 that the later notification clarified the intent behind the issue of the earlier notification. Adopting a broader view he permitted the benefit of the notification. Against this order Revenue has filed Appeal No. C/836-R/98-Mum. 6. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the product continued to be aseptic. 8. We have considered the submission. We also seen the relevant authorities certifying the product as complying with the ISI specifications. When the product was declared to be aseptic in terms of the dictionary definition given above, which was relied upon by the Tribunal in their judgement in the case of Modern Food Industries 1991 (53) E.L.T. 107 there need not be doubt that the two machines put together constituted a machinery prescribed in the notification. 9. The notification used the phrase machine/machines . Before the Commissioner and before us also considerable arguments were made on the product being shown in plural. A view had been held that the eligibility was for an assessee holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustain. The appellant succeeds on the point of limitation also. 11. Shri Sridharan's argues on the jurisdiction of the officers issuing show cause notice. But in view of our findings above we are not inclined to take up that issue for discussion. 12. Appeal No. C/51/95-C thus succeeds on both merits and limitation and is allowed. 13. In the light of our finding that a set of machines also qualifies under the parent Notification 171/90-Cus dated 16-5-1990 we need not go into the issue whether the provisions of Notification 70/95 should be read into this earlier notification or no. Since this is the only issue involved in the Revenue's appeal the Revenue's appeal fails and is dismissed. 14. Ordered accordingly. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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