TMI Blog2000 (8) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute involved in the present case is as regards the excisability and dutiability of Hot Molten Mixture of Petroleum Jelly which comes into existence at the intermediate stage during the process of manufacture of antiseptic Boroline Cream. The Department has raised the demand on the said mixture, which was consumed by them captively in a running uninterrupted process, by classifying the same as petroleum jelly under sub-heading 2712.10 of the Central Excise Tariff. The demand has been confirmed for the period - 1-3-1986 to 29-2-1989 - and the show cause notice was raised on 19-2-1991. Subsequently, Dr. Chakraborty submits that the matter was remanded by the Tribunal with the direction to the Department to take out a sample of the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Mehtachem Industries v. C.C.Ex., Rajkot reported in 2000 (116) E.L.T. 690 (T) = 1999 (32) RLT-48 (T) wherein a similar product arising during the course of manufacture of Boroquien Antiseptic Cream was before the Tribunal and it was held that the same cannot be considered as petroleum jelly to be classified under Heading 27.12. He also submits that the appellants have a good case on limitation inasmuch as the show cause notice was issued after a normal period of limitation of six months. In these circumstances, he prays for allowing the appeal. 3. Countering the arguments, Shri V.K. Chaturvedi, learned S.D.R. appearing for the Revenue reiterated the reasonings of the authorities below and draws our attention to the Chemica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions made from both sides and have gone through the impugned Order. The process of manufacture of Boroline and emergence of the disputed white mixture are given by the appellants in the memo of appeal. The same is reproduced below for better appreciation :- (a) Liquid Paraffin (Light), Paraffin (Heavy), Hard Paraffin, Micro Crystalline Wax and Lanolin (wool-fat) are charged in a single operational process and are melted into a liquid in a melting kettle at the temperature of 90 C - 100 C and the said liquid is transferred into a mixing vessel with stirrer through a Centrifugal Pump (Step-1); (b) Boric Acid I-P, Zinc Oxide I-P and Talcum Powder are powdered and mixed (Step-II); (c) Step-II is added t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.N. Explanatory Note which deal with the petroleum jelly, explains as under :- To fall in this heading, petroleum jelly must have a congealing point, as determined by the rotating thermometer method (ASTM D 938) of not less than 30 C, a density at 70 C of less than 0.942 g/cm, a Worked Cone Penetration at 25 C, as determined by the method, ASTM D 217 of less than 350, a Cone Penetration at 25 C, as determined by the ASTM D 937 method of not less than 80. 6. As rightly contended by the learned Advocate for the appellants, the above Explanatory Notes lay down three conditions which have to be cumulatively satisfied for considering any product to be petroleum jelly classifiable under sub-heading No. 2712.10. The Chemical Test Report rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to duty or not. The appellants have strongly contended that the white mixture in hot stage is not capable of being marketed and the same is not known as a distinct commodity in the market. On the other hand, the Commissioner has observed that white mixture is a commercially known product and is referred to as cream-base etc. He has, further, observed that the composition of the same may vary from product to product, but it is the essential base for all creams. The appellants' contention as regards the transient shelf-life of the product has not been accepted by the adjudicating authority on the ground that a sample had been drawn and sent for testing, which had not deteriorated, as such reflecting upon the shelf-life of the product. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also note that the Tribunal in the case of Mehtachem Industries v. C.C.Ex., Rajkot reported in 2000 (116) E.L.T. 690 (T) = 1999 (32) RLT-48 (CEGAT) has held that the intermediate product consisting of petroleum jelly, lanolin and paraffin coming into existence during the process of manufacture of Boroquien Antiseptic Cream is not excisable inasmuch as the Revenue has failed to adduce evidence as regards the marketability of the said product. The facts and the legal point involved in the present appeal are duly covered by the ratio of the earlier decision of the Tribunal in the case of Mehtachem Industries. Therefore, we do not find any reason to take a different view, in view of our foregoing discussions. As a result, we set aside the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
