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TMI Blog2013 (4) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay central excise duty on the Bandha Pack, as the same had smaller pack, which contained Tea which is less than 100 gms. It is also to be noted that the appellant had indicated in the return, the clearance of Tea Packs are less than 100 gms. The findings recorded by the first appellate authority as regards limitation are correct and we concur with the same. Accordingly, we find the said impugned order is correct. - Decided against the revenue. - E/22 and 291/2006 - A/950-951/2012-WZB/AHD - Dated:- 12-6-2012 - Shri M.V. Ravindran and B.S.V. Murthy, JJ. Shri S.K. Mall, AR, for the Appellant. Shri P.M. Dave, Advocate, for the Respondent. ORDER Both these appeal Nos. E/22/02 and E/291/06 are directed against Order-in-Original No. 126 to 129/2006(Ahd-I) dated 30-6-2006. Since the appeals are directed against the very same Order-in-Appeal, they are being disposed of by a common order. 2.The relevant facts that arisen for consideration are that the respondent herein are engaged in the business of manufacturing and selling tea in various types of packs under their own brand name. The product of tea manufactured by the appellant is excisable commodity and is cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the present case. Bandha Pack is therefore, to be treated as a unit container. Further, Bandha Pack also satisfies definition of unit container given in Section 11 of Central Excise Tariff Act, 1985 according to which unit container means a container, whether large or small designed to hold a predetermined quantity or number. Notn. No. 17/98-C.E., dated 18-7-1998 specifically mentions at Sr. No. 2B wherein Tea put up in unit containers of content not exceed 100 gms. per unit container falling under Chapter No. 0902.10 will attract Nil rate of duty. However, the unit container, in all these cases are above 100 gms. and thus will not be entitled for the exemption Notification. The smaller packs did not contain any retail price, as it was not possible to do so due to smaller size of the packs of 2.5 gms., 5 gms., 10 gms. As revealed by Shri Mafatlal Patel, Factory Manager, which have not been considered by the appellate authority while deciding the matter. The dealer M/s. Chirag Sales Agencies and retailer Shri Amrutlal Patel have revealed that they always sold bandha packs of 5 gms. 10 gms. Pouches in the Bandha Pack and that they never sold 5 gms. 10 Gms. individuall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrived at by the Commissioner (Appeals) are incorrect. It is his submission that the lower authorities failed to show how Bandha Pack is not a unit container and also as to how packing of small packs into Bandha Pack would constitute manufacture. It is his submission that a Bandha Pack is not a unit container, therefore small packs of tea packed in Bandha Pack is not the nature of Tea put in unit of exceeding 100 gms. per unit container. It is his submission that the grounds of appeal of the Revenue as regards the findings for non-invocation of limitation, is only limited to the extent not given information about the Bandha Pack to the authority. There is no suppression or mis-declaration with an intention to evade payment of duty when small pack considered as unit container by the respondent admittedly not exceeding 100 gms. and they were shown in the return unit weight did not exceed 100 gms. It is his submission that there was a bona fide belief as to small pack was unit container for the Bandha Pack and was labelled as such. This exemption benefit is an option on the part of the assessee, hence invoking extended period of limitation cannot be invoked on bona fide of claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose in as it where it is form from their manufacturing unit. Thus in that case such pouches has to be loaded in the trucks, lorries, trailers, bullock carts etc. like fruits or vegetables are loaded in number. That will make the manufacture of such tea as impossible to further transport it, store it, distribute it to ultimate consumers. Much convenience would be lost, costs will escalate in handing and in selling of such tea. After all, the purpose of exemption appears to be to unburden the poor, the tribals and the rural villagers who are consumer of such tea packs and it is they who purchase tea in pouches, from the burden of excise duty. The cosmetics, medicines and hygienic materials are also purchased by ultimate consumers in smallest unit containers. No one can say that those are not a unit container. I have seen the samples of small packs i.e. paper pouches containing 2.5 gm and 5 gm as well as plastic pouches containing less than 100 gm i.e. 25, 50, or 40 gms etc. which are further packed in larger carry bags or polythene on which no doubt retail price of smaller pouches are recorded. The upper mouth of such Bandha pack are stapled. The larger pack of polythene bag or carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Tribunal answered the point of reference in negative. It held that the apple concentrates kept in 62 kgs. or 49 kgs of carboys/jar/barrels etc., fall outside the scope of item 11B as then it was, that such unit containers were not ordinarily intended for sale. In case of unit container, the container should be sold along with its contents. In other words, in case of unit container, the goods contained therein had to be traded along with its container. In this case of tea, in my understanding, if any one is purchasing Bandha pack, then he is purchasing in wholesale or good quantity of tea in larger containers for using such tea pouches at a particular time for making specific numbers of cup of tea. Similarly, some vendors sells tea for poor labour or tribal class of people, in number of 2, 3 and 4 pouches at a time. This view stands confirmed from the cross examination Mr. Amitlal Manubhai which finds mention at para 9.1 of O in O No. 18/AOC/2006 dated 22-3-2006. The Additional Commissioner in his Order-in-Original dated 22nd March, 2006 at para 9.1 had recorded that in cross examination Shri Amratlal Manubhai, Proprietor of M/s. Amratlal Manubhai who on 24th October, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or limb of this deemed definition of manufacture. Secondly, as regards labelling or re-labelling of container and re-packing from bulk to retail pack or according such treatment which renders the goods marketable to consumers and hence amounts to manufacture is concerned - one must see the facts of the case and then the ground reality. In this case packing is not from bulk to retail, rather it is from retail to bulk i.e. it is a reverse process. Thirdly by making bandha pack from smaller pouches does not render the product marketable to consumers . In fact the small pouches consisting less than 100 gms of tea polyethene plastic printed pack is itself in ready to use condition by the particular section of society or so to say by a particular section of consumers. Therefore the revenue s case that on ground of extended definition of manufacture the duty liability would stands attracted and hence should be thrust on the appellants; in my considered view is devoid of merit. The revenue case is extremely weak to that extent. The relevance of the case law as cited by the learned advocate i.e. of Ammoni Supply Company v. CCE - 2001 (131) E.L.T. 626 (Tri.) is very much relevant. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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