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TMI Blog2004 (6) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... as reported in 1998 (97) E.L.T. 402 (S.C.). He, further, mentioned that Notification No. 181/88-C.E. grants complete exemption from payment of duty to metal containers intended to be used for packing of goods specified therein namely (i) whole milk powder, (ii) Skimmed milk powder (SMP), and (iii) Milk powder including SMP for infants and baby foods; that they were granted a L 6 licence for availing the benefit of the Notification; that in the licence, milk powder was specifically indicated as the product for the packing of which the metal containers would be bought duty free. 3.1.In respect of Appeal No. E/ 2586/2001-D, the learned Advocate submitted that when the issue regarding the classification of Dairy Whitner was pending decision before the Supreme Court, three show cause notices dated 9-10-91 and 10-4-92 proposing to demand duty on the metal containers used during the period from 30-7-1991 to 31-12-1991 under Rule 196 of Central Excise Rules, 1944 were issued to them; that the Assistant Collector confirmed the demand of duty under Adjudication Orders dated 14-5-1992 and 29-5-92; that, however, on Appeal, the Collector (Appeals) under Order-in-Appeal Nos. 865 to 867/CE/CHD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was allowed on technical grounds and not on merits; that accordingly the issue cannot be held to have attained finality in view of the decision in the case of T. Tobacco Co. v. A.C., AIR 1961 AP 324 and CCE v. T.K. Paleap A. Naidu, AIR 1964 Mad 111 wherein it has been held that an order set aside in Appeal not on merits but on technical grounds, open to Adjudicating Authority to initiate fresh proceedings on the same grounds with a view to observe correct procedure; that hence the present proceeding is not hit by res judicata; that further, the period covered under earlier order was from 19-1-91 to 31-10-91 whereas the present show cause notice covers period from 24-2-89 to 31-12-91. 6.1.In respect of Appeal No. E/1760/2001-D, the learned Advocate mentioned that a show cause notice dated 24-2-1994 was issued by the Commissioner contending that since 'Everyday Dairy Whitner' is not skimmed milk powder, they are not entitled to receive the metal containers duty free under Notification No. 181/88-C.E; that the show cause notice also invoked the extended period of limitation under Proviso to Section 11A of the Central Excise Act for demanding duty for the period from 24-2-1989 to 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 (125) E.L.T. 1105 (T). 7.Countering the arguments, the learned Senior Departmental Representative submitted that the Appellants were granted L 6 licence in form L 6 for obtaining metal container for packing of Milk Powder, Baby Foods and skimmed milk powder; they had nowhere declared that the Metal containers obtained under Notification No. 181/88-C.E. would be used to Pack Partially Skimmed Milk Powder; that thus they had misdeclared the facts regarding packing of partially skimmed milk powder to the Department; that CT 2 issued to them clearly mentions that Metal containers are for packing whole milk powder, skimmed milk powder, infant foods, baby foods and ghee. The learned Senior Departmental Representative also submitted that the time-limit specified in Section 11A(1) of the Central Excise Act for demanding duty is not applicable to the demand of duty made under Rule 196 of the Central Excise Rules; that Rule 196 provides that in case the goods are not duly accounted for as having been used for the purpose and in the manner stated in the application, the person shall, on demand by the proper officer, immediately pay the duty leviable on goods; that Rule 196 thus is a self- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent show cause notice dated 19-12-1994 is not for a different period as claimed by the Revenue. It is for the same period that is 30-7-91 to 31-12-91 for which earlier three show cause notices had been issued. Following the ratio of the decisions relied upon by the learned Advocate we set aside the impugned Order-in-Appeal No. 306/CE/CHD-II/2001, dated 31-8-2001 and allow the Appeal No. E/2586/2001-D. 9.1.Coming to Appeal No. E/1760/2001-D, we observe that Hon'ble Punjab & Haryana High Court in their own case [Food Specialties Ltd. v. Union of India, 1991 (51) E.L.T. 310 (P&H)] has held that Everyday Daily Whitner is partly skimmed milk powder. This judgment has been upheld by the Supreme Court in Union of India v. Food Specialties Ltd., 1998 (97) E.L.T. 402 (S.C.), Notification No. 181/88-C.E., dated 13-5-1988 exempts, inter alia, Metal Containers from whole of the duty of excise if- (a) such metal containers are intended to be used for packing the goods specified below, namely:- (i) Whole milk powder; (ii) Skimmed milk powder which is packed for sale in a container not more than one Kilogram nett of such skimmed milk powder; (iii) Milk powder, including skimmed milk powder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... metal containers for the intended purposes mentioned in the Notification No. 181/88-C.E. Rule 196 of the Central Excise Rules, 1944 provides in clear terms that "if any excisable goods obtained under Rule 192 are not duly accounted for as having been used for the purpose and in the manner stated in the application ...........the Applicants shall on demand by the proper officer, immediately pay the duty leviable on such goods." As the Appellants have not used the metal containers for the purpose of packing whole milk powder, skimmed milk baby foods and ghee, the duty liability is cast on them under Rule 196 of the Central Excise Rules, 1944. The decisions relied upon by the learned Advocate are not applicable to the facts of the present Appeal. For example in Dalmia Industries case, 2002 (150) E.L.T. 1088 (T), the Tribunal allowed the Appeal filed by Dalmia Industries as there was no failure to account for the goods as they used the metal containers for packing the product which the applicant cleared on payment of duty. It was also argued therein that the Department had issued a Certificate for procurement of metal containers under Chapter X procedure for packing of New Sapan Dairy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under : "Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none .... Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but will be attracted only to cases where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded .... The situation on hand and the one which has to be dealt with under Rule 57-I, as it stood unamended does not fall under any of those contingencies provided for in Section 11A of the Act. Part AA of the Rules in which Rule 57-I is found included provides a special scheme for earning credit and adjustment of duty paid on excisable goods used as inputs in the manufacture of what is referred to as "final product", and thereby enable the manufacturer to utilize the credit so allowed towards payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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