TMI Blog1979 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... specifications which make them suitable for storage in sterile condition and for departmental transport or conveyance within a plant. 2. The respondent Nos. 5 and 6 - Hindustan Anti-Biotics Limited, and Indian Drugs and Pharmaceuticals Limited - are Government plants manufacturing life saving and sensitive drugs on a large scale. The respondent No. 7 - Geoffrey Manners and Company Limited - is a private company manufacturing life saving drugs. 3. Between February 19, 1972 and April 16, 1973 all the canisters manufactured by the petitioners were sold to respondent Nos. 5, 6 and 7. The respondent No. 5 purchased 7,749 canisters while respondent No. 6 purchased 6,276 canisters and respondent No. 7 purchased a very small quantity of 75 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and 6. The letter of respondent No. 5 dated December 23, 1971, inter alia, states that the aluminum canisters are used for storing the product and conveying the same in various stages of production and only some of the canisters are being used for carrying the product to the bottlers and the same are returned back to respondent No. 5 after taking out the material. The letter dated February 16, 1972 from respondent No. 6, inter alia, states that the canisters are used for the same purpose as mentioned in the letter of respondent No. 5 and the same are used for shifting and transporting of bulk material to the bottlers and as such would not attract any excise duty. The Collector of Central Excise considered all this material and by a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by respondent No. 6 to the Collector is more relevant as respondent No. 6 has clearly stated that the order dated April 16, 1973 cancelling the earlier opinion dated February 21, 1972 was erroneous and the revision was without appreciating the full facts of the case. The respondent No. 6 clearly stated that Tariff Item No. 27 (f) is attracted provided the canisters are ordinarily intended for packaging of goods for sale and only 4 to 5% of canisters purchased by respondent No. 6 are transferred to the bottlers for the purpose of packing the powder in glass vials before sale in the market. In spite of this material produced before the Assistant Collector, Central Excise, Poona, the Officer by his order dated December 3, 1973 treated the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners did produce before the Collector the material to indicate that only 4 to 5% of the cansisters sold to respondent Nos. 5 to 7 are transferred to the bottlers for packing the powder in glass vials. Mr. Desai submits that the letter of May 15, 1973 was not even considered by the Assistant Collector or by the appellate authority. The material in the shape of letters addressed by respondent Nos. 5 and 6 prior to the opinion dated February 21, 1972 and subsequent letters dated April 30, 1973 and May 15, 1973 leave no manner of doubt in my mind that the aluminium canisters manufactured by the petitioners are not ordinarily intended for packaging of goods for sale. The averments made in the petition clearly establish that the canisters ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded for storage and not for packaging of goods for sale. The Assistant Collector while confirming the demand notice did not even refer to this material and in appeal, the Appellate Collector merely recorded it as a contention of the appellant but the operative order does not make any reference to that contention. In my judgment, the authorities below have overlooked the material on record and have proceeded on an erroneous assumption by taking into consideration irrelevant circumstances to hold that Tariff Item No. 27 (f) is attracted to the products manufactured by the petitioners. 9. Mr. Shah then submitted that in any event I should not quash the demand notice issued by the Assistant Collector but remit the proceedings back to the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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