TMI Blog1999 (2) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... g of fabrics captively without payment of duty. The Collector, Central Excise, under the impugned order dated 29-5-1992, confirmed the demand of Central Excise duty for the period of six months classifying the product under sub-heading 3204.39 of the schedule to the Central Excise Tariff Act and holding that the mixing of ingredients brought into existence a product known as printing paste; that printing paste is known differently from the raw materials like urea, emulsifier, water, binder, etc. used in its manufacture; that the process employed is covered by the scope of manufacture under Central Excise law. Reliance was placed on the decision in the case of Empire Industry - 1985 (20) E.L.T. 179 (S.C.). The Collector also did not agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed has exceeded the amount specified in the Notice; that the duty demanded in adjudication order cannot exceed the amount specified in the notice as held in the case of J.B.A. Printing Inks v. U.O.I. - 1980 (6) E.L.T. 121 (Bombay) and Kiran Spinning Mills v. C.C.E. - 1989 (40) E.L.T. 385 (T). He also mentioned that the printing paste is prepared for instant and ready captive use and is not a marketable commodity; that the main use of the printing paste depends on its shade for printing; that the shade of the printing paste diminishes as compared to the previous day as is apparent from the analytical report dated 17-2-1992 from the department of Chemical Technology, University of Bombay; that the test of marketability is an essential ingredi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector as contained in the impugned order and emphasized that the issue regarding classification of the impugned product under sub-heading 3204.19 was raised during personal hearing of the case which is evident from page 20 of the impugned order. According to him there was a typographical error in mentioning sub-heading 3204.19. At the stage, the ld. Counsel for the appellants referred to the show cause notice dated 19-9-1991 issued by Superintendent Range V, Division GI of Bombay-I in which it was mentioned that printing paste was classifiable under sub-heading 3204.19 of Central Excise Tariff Act. The ld. SDR also drew our attention to the observation of the Collector in the impugned order regarding report of the chemical examiner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had manufactured printing paste from out of standardised, formulated and prepared form. The Hon ble High Court of Bombay in order dated 26-10-1993 in Writ Petition No. 1906 of 1993 filed by the Appellants observed that in view of the fact that they had throughout contended that they purchased formulated, standardised or prepared dyes and by mixing other chemicals prepared printing paste, they would be entitled to the benefit of the classification issued by the Board dated 21-4-1993. The Collector did not have the Board s order dated 21-4-1993 while adjudicating the matter. As this is a matter of fact and in the interest of justice we are of the view that the matter should go back to the adjudicating authority for ascertaining the fact wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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