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TMI Blog2002 (7) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Tariff Act, 1985 (hereinafter referred to as 1944 Act and 1985 Act respectively). 2.The dispute in the present appeal relates to the product namely 'Emami Talcum Powder' manufactured by the appellants, with one of the ingredients as Ethyl Alcohol. The period involved in the present appeal relates to 1-1-91 to 31-3-94. The demand has been confirmed on the ground that some of the samples tested during the period from 5-9-92 to 20-4-93 tested negative towards the presence of alcohol and as such, Talcum Powder classifiable under Central Excise Act, is leviable to duty of excise. On the other hand, the appellants' contention is that inasmuch as the goods were containing alcohol, they were covered by the 1955 Act and they have di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control over the alcohol supplied to the appellants and used in its factory, was being exercised by the authorities under the 1955 Act. The procedure followed in this regard was as under :- (a) Annual permits were issued to the appellants for Ethyl Alcohol required at its factory for use in manufacture of its products. In the permits, the names of Bonded Laboratories from where the alcohol was to be lifted were mentioned. Applications for lifting the alcohol along with the annual permits were submitted to the Bonded Laboratories. Alcohol was, thereafter, supplied to the appellants by the Bonded Laboratories in the presence of the Area Officer (Excise) and the permits used to be endorsed with the quantities so supplied. The Bonded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with the 1956 Rules, the Excise Officers used to make assessments in Form AR 2 under the heading "Assessment Memorandum". While making the assessment, total quantity, total value, rate of duty and amount of duty payable used to be mentioned. The clearances from the factory were then allowed only on payment of the duties so assessed. Thus, on the clearances from the factory, physical control was exercised by the authorities under the 1955 Act. (g) At the end of each month, Monthly Returns of Emami Talcum Powder containing alcohol were filed before the Deputy Excise Commissioner as per the 1955 Act and the 1956 Rules. (h) The rate of duty under the 1955 Act during the entire relevant period was 100% ad valorem and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as based upon the failure of the sample testings. Even though the Tribunal observed that such failure of the samples for presence of alcohol could have been on the ground of wrong methods of testing applied by the chemical examiner or on account of the goods having been kept in the open for a longer period, resulting in evaporation of alcohol. As such, he submits that the Tribunal has allowed the appeal even when the samples had failed whereas in the present case, there are no samples drawn during the relevant period. 5.He also draws support from the Hon'ble Supreme Court's decision in the case of Dabur India Ltd. v. State of Uttar Pradesh reported in 1990 (49) E.L.T. 3, wherein a toothpaste called Homeodent, manufactured by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submits that under the 1955 Act, duty was leviable @ 100%, whereas under the 1985 Act, it was 100% for some time and was further reduced to 70%, and for subsequent years, it was 50%. As such, the appellants, in fact, stood to gain if the goods would have been classifiable under the Central Excise Act instead of 1955 Act. He also draws our attention to the various decisions on the point of limitation. Shri Bagaria, learned Advocate submits that the imposition of penalty upon the appellants was neither justified nor warranted. 7.Shri A.K. Pandit, learned JDR appearing for the Revenue reiterates the reasonings adopted by the adjudicating authority. 8.We have considered the submissions made from both sides and have gone through the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and returns maintained under the 1955 Act, was, in fact, not being used in the manufacture of the Talcum Powder. Their entire cases are based upon the failure of some samples drawn during the period from September, 1992 to April, 1993. It is also seen that majority of the samples during the said period, tested positive towards presence of alcohol under the Talcum Powder. The appellants' manufacturing process remained the same and the Commissioner is silent as to why it is the test report of the failed sample which has to be applied to the present period and not the test report of the passed samples. It is also seen that in respect of the appellants' other Unit, the Tribunal has already taken a view that failure of the few of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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