9911796707
TMI Blog2004 (6) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... duty short paid/not paid on goods cleared by them during the period from 1-9-1993 to February, 1997, details of which are in the annexure to this order, were issued, proposing recovery of duty amounting to Rs. 8,59,09,619.09. The notices proceeded to demand duty on the basis that the Godrej Jumpin drinks of flavours Mango, Guava, Pineapple, Lime and Orange fall for classification under CETA sub-heading 2202.90 as ready to serve non-alcoholic beverages , and not under CETA sub-heading 2001.10 (sic) as preparations of fruits put up on unit containers and intended for sale as claimed by the assessees; and that the benefit of exemption from duty under the Notification 19/91-C.E. was not available as the goods falling under CETA Chapter Headi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act, by upholding classification of the goods in dispute under CETA sub-heading 2202.90, and imposing penalty of Rs. 20 crores upon the appellants under Rule 173Q. He disallowed Modvat credit of Rs. 10,300/- availed in July, 1994 and directed recovery of the same. The remaining Modvat demands issued under 9 notices were dropped as all the 7 inputs on which the assessee had taken credit under Rule 57A were specified inputs used in the manufacture of specified final products and chargeable to effective rate of duty. He also levied interest as per the provisions of Section 11AB of the Act. Hence these appeals. 3. We have heard both sides. 4. The issues for determination by us are : (i) Correct classification of the disputed go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and additives is similar to the composition of the products in dispute. Hence the ratio of the earlier order in the case of the same appellant is directly applicable and following the ratio thereof we hold that the products in dispute are classifiable under CETA sub-heading 2202.90 as ready to serve non-alcoholic beverages. 6. On Issue No. (ii) we find that the Commissioner has held that the question of availability of exemption does not arise as no exemption was claimed in terms of any notification in the form of classification list by the assessees. This cannot be a ground to deny the benefit if otherwise found applicable. The products, Jumpin Mango and Jumpin Guava are undisputedly fruit pulp based drinks. The benefit of the notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Duncans Agro Industries v. Union of India - 1989 (39) E.L.T. 511 (Del.) which has been upheld by the Supreme Court as seen from 1995 (75) E.L.T. A37, wherein it has been reported that the assessees withdrew its appeal before the Apex Court. 10. As regards Issue No. (v) is concerned, penalty is not sustainable in view of the decision of the Tribunal in the case of Mangalore Refinery Petrochemicals Ltd. v. Commissioner of Customs, Mangalore, 2002 (145) E.L.T. 689, holding that penalty cannot be imposed in a case of finalization of provisional assessments. In the present case the assessments were provisional and have been finalised only by the impugned order of the Commissioner. We accordingly set aside the penalty. 11. To sum up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /07/1994 30/09/1994 37,22,314.00 6. 07/02/1995 01/10/1994 31/12/1994 48,24,559.00 7. 23/05/1995 01/01/1995 30/04/1995 1,86,10,999.00 8. 29/11/1995 May, 1995 48,70,074.00 9. 29/12/1995 // 01/01/1996 June August, 1995 11,02,417.00 10. 09/01/1996// 11/01/1996 September October, 1995 7,56,784.00 11. 81/04/1996 (sic) November, 1995 February, 1996 13,46,289.00 12. 01/10/1996 March June, 1996 38,41,931.00 13. 13/02/1997 August December, 1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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