TMI Blog1999 (11) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... were engaged in the removal of pasta food on the pretext of falling under sub-heading 1902.90 - Others - (bulk in loose) with an intent to evade payment of appropriate Central Excise duty as the removal of the goods in fact fell under sub-heading 1902.10, the Preventive Staff of the Central Excise visited the factory premises of the appellants on 17-10-1982 and 19-1-1993. They examined the process of manufacture, procedure for weighment, packing and marketing pattern of the product. They also seized certain records, i.e. production registers, production reports/slips (Pasta Food Shift reports), invoices, delivery orders and loading advices file, order form and invoices raised from Bhopal office of the appellants. During the course of investigation, statements of General Manager (Commercial), Shri Hemant K. Tata, Rajesh Kumar Saxena, Dy. Manager (Commercial), D.N. Srivastava and Ramesh Chandra Srivastava, Godown Supervisor were recorded on 17-10-1992/19-1-1993. 4. During the inspection of the plant of the appellants, it also revealed that appellants were first collecting the pasta food in LDPE bags each weighing 10 kgs. and slips containing variety of pasta food, date of packing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 19, they informed the process of the manufacture to the Revenue Department vide their letter dated 2-12-1987. They also got the licence in form L-4 and filed the classification lists under Rule 173(b) of the Rules wherein they classified their product under sub-heading 1902.10. They further alleged that it was also intimated to the Revenue authorities that they would be manufacturing other items including pasta which will be covered under sub-heading 1902.90 being not cleared in unit containers. The classification list filed by them was duly approved. In that list it was clearly mentioned by them that they were manufacturing and clearing pasta product not only in unit containers but as well as in such packings not covered by sub-heading 1902.10. There had been no suppression of facts by them from the Revenue authorities. They further maintained that they had been preparing packets of the pasta product weighing 10 gms., 200 gms., and 400 gms. and these packets contained details of the date of manufacture, name of the manufacturer and price etc. But in addition to that they were also manufacturing pasta in loose and clearing the same in that very condition. These details were given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omers, by illegally describing the same as bulk in loose sale in order to take out their clearances out of the purview of sub-heading 1902.10. 13. Before reverting to the stand and counter stand of the parties, it would be beneficial to refer to sub-headings 1902.10 and 1902.90 of Chapter 19 of CETA. These sub-headings reads as under :- 1902.10 - Put up in unit containers and ordinarily intended for sale 1902.90 - Other 14. The controversy centers round the question as to whether the expression put up in unit containers and intended for sale in sub-heading 1902.10 covers the second category of sale of the pasta product of the appellants which is being made by them in big bags weighing 10/20 kgs., each. 15. In order to substantiate the plea of the appellants referred to above, the ld. Counsel has done mere splitting of all the words used in this sub-heading 1902.10. He has contended that the words put up in the unit containers should be interpreted in such a manner that they convey the meaning that the product must be put up in small containers weighing 1/2/3/4 kgs., and those containers should have only that much capacity to contain and must carry full particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression, unit container means a container whether large or small (for example, tin, can, box, jar, bottle, bag or carton, drum, barrel or container) designed to hold a predetermined quantity or number. It is this definition which deserves to be followed/applied here. Even in ordinary parlance words unit containers cover not only small such as tinny tins, cans, bags, plastic bags etc. but also big bags, drums, barrels, box. Therefore, the words unit containers as used in sub-heading 1902.10 have to be interpreted in such a manner so to include not only small but also large containers, especially when the size and capacity of the containers had not been specified in this sub-heading by the Legislature and the Tribunal has also no power to specify the same. Wherever the Legislature intended to restrict the applicability of a particular sub-heading of the Central Excise Tariff Act, regarding sale of the product in a container, it had specified quantity and capacity of the container. One of such examples can be found by making reference to Chapter 9 of the Central Excise Tariff Act as under that Chapter, the sub-headings 902.10 and 902.90 reads as under: - 0902.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale. We would be putting cart before the horse if we say without reference to the product, that the unit containers must be meant for sale. It is the product which had been subjected to payment of excise duty under sub-heading 1902.10 and not the containers. 21. The learned counsel also wants us to add words to the consumers on the shelf after the words intended for sale in this sub-heading. But such addition cannot be legally made by the Tribunal. It was the duty of the Legislature if it so desired to add these words in this sub-heading. Having not done so by the Legislature it is beyond the jurisdiction/purview of the Tribunal to do so. The wording of the sub-heading 1902.10 has to be accepted and interpreted as it is without adding or subtracting any word therefrom. Therefore, to say that the unit containers containing pasta product must be intended for sale only to the consumer at shelf, and not to be distributor/wholesale dealers, for bringing the case under sub-heading 1902.10 would not be justiciable. The plain wording used in this sub-heading is wide enough to cover sale not only to the consumers but also to the distributors/wholesalers in unit containers whether bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. CCE, Raipur (supra) the product `tomato puree had been classified under sub-heading 2001.90 and it was cleared in jerry-cans of 35 litre capacity and for that reason it was observed that the product could not be deemed to have been contained in unit container. Similarly, in the other case Agro Foods Punjab Ltd. v. CCE, (supra) the fruit juice was cleared in barrels or drums varying in quantities and on that account the classification of the product was made under sub-heading 2001.90 and not under 2001.10 as it was not considered as sale in a unit container. Likewise, in C.C.E. v. H.P.M.P.C., (supra) the clearance of the apple juice concentrate was made in big plastic containers/carboys of varying quantities and for that reason the product was classified under Item 68 of the Central Excise Tariff and not taken as prepared or preserved foods put up in unit container within the meaning of item 1B of the old Tariff. But in the light of the discussions made above, the sale of the pasta products by the appellants, in the big bags known as LDPE and HDPE cannot be said to be a sale of bulk in loose as these bags contained fixed quantity of the product for sale to the distributors/cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Godown Supervisor on 17-10-1992 and 19-1-1993. 27. The mode of clearing the pasta product in the manner narrated above was obviously adopted by the appellants with a view to evade payment of duty by alleging that the same were covered by sub-heading 1902.10 and not sub-heading 1902.10. The stock taking reports now produced before the Tribunal alongwith the appeals in order to show that their clearance of pasta products were bulk in loose and not in the unit containers cannot be taken to be true at this stage for not having been produced the same before the adjudicating authority. They had even in the RG.1 register had shown 20 kgs. HDPE bags packings, as loose. This shows that they had not been preparing the record correctly. Moreover, entry in the stock taking register is not at all relevant in determining the classification of the product. The LDPE and HDPE bags had been used as unit containers by the appellants for the sale of pasta product as each bag weighed 10 to 20 kgs., respectively , as per their record. Their clearances of the pasta products in these bags fell under sub-heading 1902.10, as discussed above, but they by suppressing the true facts, had been clearing the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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