TMI Blog2003 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... that no manufacture of plastic bottles ever takes place and the levy cannot be based on a possibility. Besides, they have challenged the proposal on the ground of limitation. The Commissioner in the Adjudication order has confirmed the duty demand amounting to Rs. 2,33,69,238/- and imposed penalty of equal amount against the firm under Section 11AC and ordered recovery of interest. Penalty of Rs. 1,00,000/- has also been imposed on D. Chitlangia, G.M. (Commercial) of the firm. 2. We have heard both sides. 3. It is pleaded that so-called plastic bottles are formed in a continuous, integrated and uninterrupted process of manufacture of packing of intravenous I.V. Fluids. The same do not have separate and independent existence. Apart fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocynates within the cavity of plastic articles and such process does not amount to manufacture. It is held that the issue is not identical to the issue of the appellants. Besides above, instructions contained in CBEC Circular No. 11/89 conveying that tetra packs, bricks etc. are not liable to Excise duty have also been brushed aside stating that plastic bottles manufactured by form fill and seal technology are not covered by the said circular. 4. We have carefully examined various submissions. The Commissioner s observation for holding that there is a manufacture of plastic bottles are reproduced hereunder :- Moreover, M/s. ADL have also submitted that plastic bottles are only at (sic) (an) intermediate stage which emerge during the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner with reference to the case law cited in M/s. Super Cassette Industries (Supra) and the instructions contained in the Board s circular referred to above, are also without any basis. Moreover, in the case of Moti Laminates v. CCE, Ahmedabad, reported in 1995 (76) E.L.T. 241 (S.C.), it has been held that, where captively consumed goods are established to be not marketable, consequently, the same cannot be subjected to excise duty. We notice that, the department has not been in a position to demonstrate that so-called plastic bottles emerging at intermediate stage in a continuous integrated and un-interrupted process of manufacture involving form fill seal technology are capable of being marketed in the manner analogous to the glass bottles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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