9911796707
TMI Blog2000 (4) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... were duly approved by the proper officer after making necessary verifications. 2.Apart from the above products, the appellants are also manufacturing Tin Containers which fall under Sub-Heading : 7310.00. A part of the said Tin Containers was being used by the appellants captively for packing of Valve Grease Paste, Metal Polish and Silicon Polish. In respect of this part of Metal Containers, benefit of Notification No. 217/86-CE was being claimed by them. Wherever the said Tin Containers were not captively used for packing of exempted final products, the appellants paid the duty on the said Tin Containers at the applicable rates under Sub-Heading : 7310.00. The other two products i.e. Glass Cleaner and Wax Polish, were being packed by the appellants in Poly-bottles purchased by them from outside manufacturers. 3.The Commissioner vide his impugned Order has denied the benefit of Notification No. 222/77-CE to the appellants' products on the ground that containers and/or poly-bottles used for packing the goods, were manufactured with the aid of power and as such, the condition of the said Notification does not stand fulfilled. Accordingly, demand of duty of Rs. 49,48,439.29 was conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers to the following decisions :- (i) 1999 (111) E.L.T. 498 [CCE v. Garware Wall Ropes Ltd.]; (ii) 1999 (110) E.L.T. 919 [CCE v. Jackson Engineer (P) Ltd.]; (iii) 2000 (125) E.L.T. 646 (T) = 1997 (22) RLT 678 [Dassani Electric (P) Ltd. v. CCE]; (iv) 1998 (102) E.L.T. 722 [Hi-Tech Polypack v. C.C.E.]; (v) 1998 (99) E.L.T. 241 [CCE v. Mysore Spinning & Mfg. Mills]; (vi) 1996 (84) E.L.T. 299 (T) = 1996 (14) RLT 357 [Kumar Brothers Electrica Fittings & Equipments (P) Ltd. v. C.C.E.]; (vii) 1997 (73) ECR 796 [Kemp & Co. Ltd. v. C.C.E.]; (viii) 1994 (69) E.L.T. 748 [CCE v. Bombay Foods (P) Ltd.]; (ix) 1996 (86) E.L.T. 604 (T) = 1996 (12) RLT 771 [Eastern Metals and Ferro Alloys v. C.C.E.]; (x) 1999 (107) E.L.T. 190 [Kanti Prasad Tibrewala v. C.C.E.]; (xi) 1996 (82) E.L.T. 447 (SC) [CCE v. Ojas Corporation]. 6.As regards the confirmation of demand on "Thinners", Notification No. 230/86 only requires that the "Thinners" should be made without the aid of power and thus obviously the restriction was about the use of power in making of "Thinners". Simply because power-driven pump was used for transfer of alcohol into drums from storage tankers, there can be no scope whatsoever, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents and records relating to manufacture of the goods were examined, scrutinised and verified by the Department on several occasions. The Classification Lists filed with the Department were all along approved. In these circumstances, there was no ground available with the Department to invoke the larger period. The reasoning of the Commissioner that the relevant facts required to be disclosed by the appellants were not mentioned in the Classification Lists, is untenable inasmuch as whatever was required to be disclosed in the format of the Classification Lists, were duly disclosed by the appellants. In support of his submission on the issue of time-bar, he refers to the various decisions of the Honourable Supreme Court. 9.As regards the imposition of personal penalty, Shri Bagaria submits that a huge penalty of Rs. 4.00 crore has been imposed by the Commissioner, which was neither justified nor warranted. As regards the direction of payment of interest in terms of the provisions of Section 11AB, he submits that the said Section cannot be invoked for the period prior to 29-8-1996, inasmuch as the same was not in existence on the said date. For this, he refers to the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of Poly-bottles can be considered as use of power in the manufacture of appellants' products classifiable under Heading : 34.05. 13.2As regards the Poly-bottles, the same are not being manufactured by the appellants and are being purchased by them from other manufacturers. As such, the use of power in the manufacture of Poly-bottles by other manufacturers, which ultimately served as packing materials for the appellants' products cannot, by any stretch of imagination, be termed as use of power by the appellants in the manufacture of their final products. 13.3As regards Metal Containers, the appellants are manufacturing the same in their Unit. Apart of these Metal Containers is used captively and a part is being sold to outside parties. Wherever Metal Containers are being sold, proper duty of excise is being paid on the same. The dispute is in respect of Metal Containers used captively for packing the ultimate final product manufactured by the appellants. Though the appellants are manufacturing the Metal Containers in their factory with the use of power, the option to buy the same from the market and other manufacturers, was also available to the appellants. Had the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcohol from the storage tankers to M.S. Drums was ever disclosed to the Revenue or not. As such, while holding against the appellants on the availability of Notification No. 230/86 in respect of "Thinners", we remand the matter to the Commissioner for deciding the issue on limitation in respect of "Thinners" only. 13.5As regards the demand of duty of Rs. 25,538.24, in respect of the sample-testing in the appellants' factory, we agree with the submission made by the learned Advocate that since the testing of samples is technical necessity for quality control and since these samples were not taken outside the factory, no duty can be demanded thereon. Accordingly we set aside this portion of the demand also. 13.6The appellants have also been imposed a penalty of Rs. 4.00 crore. As the major portion of the demand against the appellants have been set aside by us and the matter has been remanded to the Commissioner in respect of demand of duty on "Thinners", we set aside the personal penalty also. However, the adjudicating authority would be at liberty to decide upon the factum of imposition of personal penalty in the Remand Proceedings relatable to the outcome of his decision on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
