9911796707
TMI Blog2001 (3) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... 001. 2. Shri V. Lakshmikumaran, ld. Advocate, submitted that the applicants manufacture Sweetened Condensed Milk (SCM) which is sold by them in bulk to be used as raw material by the various other industries; that they also manufacture and clear the SCM under the brand 'Milk Maid' which is sold in unit containers of 400 gms pack; that the SCM in bulk is cleared for general purposes, in barrels in varying quantities ranging from 280 kgs to 290 Kgs; that SCM in bulk is sold on weight basis and the customer pays the price on the basis of actual weight of the product in question; that accordingly they had classified the SCM for bulk under sub-heading 0401.19 of the Schedule to the Central Excise Tariff Act attracting Nil rate of duty, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrel should be treated as "put up in unit container"; that this view is not correct as the Sub-heading 0401.14 applies to concentrated (condensed) milk put up in unit containers and ordinarily intended for sale; that the Appellate Tribunal in both the cases referred to above has held that so long it is established that varying quantities of the goods under assessment have been supplied in the containers, the same cannot be treated as "put up in unit containers". He also relied upon the decision in the case of Foods and Inns Ltd. v. CCE, Bombay-II, - 2000 (118) E.L.T. 486 (Tribunal) = 2000 (38) RLT 341 wherein it was held that the goods were sold in unit containers as each gate pass shows the quantity of the contents is always the same as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retail; that the sale may be in wholesale and the type of sale does not make any differences for the classification of the products; that the applicant have not controverted the facts that the barrels are designed to hold a pre determined quantity; that in the case of Surya Agro Oils Ltd. v. CCE, Indore - 2000 (116) E.L.T. 514, Tribunal held that the words "unit containers" would also include large containers and the words "and ordinarily intended for sale" is not required to be read in continuity with the words "put up in unit containers" and it cannot be said that the containers should be capable of sale at shelf to the consumers. The reliance was also placed by the ld. SDR on the decision in the case of Foods and Inns Ltd., supra, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the applicants have made out a strong prima facie case for waiver of pre-deposit of the entire amount of duty and penalty in view of the fact that the Appellate Tribunal vide Final Order No. 755/98-D, dated 24-9-1998 in their own case CCE v. Nestle India Ltd. has rejected the appeal of the Revenue for treating barrel as unit container. Further the fact that they had stopped paying the duty after the order was passed by the Collector (Appeal) goes in their favour as far as the question of invoking the extended period of time-limit is concerned. Accordingly, the balance of convenience is in favour of the applicants. We, therefore, waive the requirement of pre-deposit and of stay the recovery of the entire amount of duty and penalty during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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