TMI Blog1998 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... s duly approved. Consequent to the budgetary changes of 1990 they filed a revised Cl No. 1/90-91 under Heading 96.17 claiming full exemption under Notification No. 83/90-C.E., dated 20-3-1990. 2.2 A show cause notice dated 19-6-1990 was, however, issued to them proposing modification. The Assistant Collector vide his order-in-original dated 16-4-1991 has held that the process carried out by the appellants amounts to manufacture and the product is appropriately classifiable under sub-heading 7012.90 described as laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated . In the meantime, three show cause notices dated 4-5-1990, 1-11-1990 and 31-12-1990 were issued for demanding differential duty totalling Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity arises on the appellants. 3.2 Learned JDR, Shri A.M. Tilak for the Revenue, however, reiterates the findings of the lower authorities on this aspect. 4.1 We have carefully considered this plea of the learned Advocate for the appellants. The process undertaken by the appellants is set out is paras 8 9 of the impugned order which for the sake of better appreciation, we reproduce below :- 8. The manufacturing process involved in this case, as desired in the appeal petitions and as explained to me during the personal hearing, is as under :- `Outer body empty bottles are loaded in bottle washers and jet rinsed with warm water. The bottles are then soaked in Alkali Tank of bottle washer which are later jet and shower rinsed using s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as their input, inasmuch as, after cleaning, washing and drying, it is siliconized, evacuated, sealed and sterilized. It also contains a drop of 13.4% of Sodium Chloride in distilled water. Its mouth is sealed with a rubber stopper, on which is placed an aluminium seal. In addition, a plastic tube is fitted inside the bottle to the stopper, which runs into the bottom. Moreover, this product is not sold in the market as an ordinary glass bottle. Instead, it is marketed as `Evacuated Sterile Non Pyrogenic Siliconized Bottle for storage of plasma, and it is commercially so known in the market. Thus, the processes carried out by the appellant results in goods, which have a distinct name, character and use, quite distinct and different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a revised classification under Tariff Heading 70.12 does not any longer survive. This classification has been proposed for the first time with the passing of the impugned order dated 27th August, 1992. The appellants having no notice for classification under Tariff Heading 70.07 for demands of duty for prior periods, the said demand would no longer be sustainable for six months preceding 19-6-1990, as held by the lower appellate authority. Notice for change in classification having been given on 27th August, 1992 by passing of the impugned order; the demand of duty sustained for six months preceding 19-6-1990 would also not be sustainable in view of this notice being given for the first time to appellants on the passing of the said impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receding 19-6-1990 should have remanded the matter to the original authority for demand of duty, if any, against the new classification. Learned Advocate, however, submits that the remand at this stage would only be a mere futility inasmuch as six months period have already expired for issuing any show cause notice. Consequently, he prays or setting aside the demand of duty sustained by the lower appellate authority. For this proposition learned Advocate relies upon - (1) C.C.E. v. Bright Brothers - 1991 (52) E.L.T. 385. (2) IOC v. C.C.E. - 1991 (54) E.L.T. 110. (3) Jyoti Laboratories v. C.C.E., Cochin - 1994 (72) E.L.T. 669 (Tribunal). 5.1 Learned JDR, on the other hand, reiterates the findings of the lower appellate authority. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from 19-6-1990 would be clearly barred by time. Hence, we set aside the demand of duty against the appellants. Further questions raised by the learned Advocate, in case he failed on the above plea of demand of duty, regarding availability of Modvat credit in respect of duty paid by the appellants on purchase of glass bottles is no longer necessary to be gone into in view of our finding of setting aside the demand of duty, as above. 7.1 In the facts and circumstances of this case, there is no justification for imposing any penalty of Rs. 5,000/-, as has been done by the original authority, even though the impugned order does not at all mention about the imposition of penalty. Therefore, penalty of Rs. 5,000/- is also set aside. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
