TaxTMI 
TaxTMI 
1998 (10) TMI 123
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....der sub-heading 9617.00 chargeable to nil rate of duty which was duly approved. Consequent to the budgetary changes of 1990 they filed a revised Cl No. 1/90-91 under Heading 96.17 claiming full exemption under Notification No. 83/90-C.E., dated 20-3-1990. 2.2 A show cause notice dated 19-6-1990 was, however, issued to them proposing modification. The Assistant Collector vide his order-in-original dated 16-4-1991 has held that the process carried out by the appellants amounts to manufacture and the product is appropriately classifiable under sub-heading 7012.90 described as "laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated". In the meantime, three show cause notices dated 4-5-1990, 1-11-1990 an....
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....ce by the process undertaken by the appellants. Therefore, no further duty liability arises on the appellants. 3.2 Learned JDR, Shri A.M. Tilak for the Revenue, however, reiterates the findings of the lower authorities on this aspect. 4.1 We have carefully considered this plea of the learned Advocate for the appellants. The process undertaken by the appellants is set out is paras 8 & 9 of the impugned order which for the sake of better appreciation, we reproduce below :- "8. The manufacturing process involved in this case, as desired in the appeal petitions and as explained to me during the personal hearing, is as under :- `Outer body empty bottles are loaded in bottle washers and jet rinsed with warm water. The b....
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....empty evacuated container, is quite distinct and different from the empty glass bottle used by the appellant as their input, inasmuch as, after cleaning, washing and drying, it is siliconized, evacuated, sealed and sterilized. It also contains a drop of 13.4% of Sodium Chloride in distilled water. Its mouth is sealed with a rubber stopper, on which is placed an aluminium seal. In addition, a plastic tube is fitted inside the bottle to the stopper, which runs into the bottom. Moreover, this product is not sold in the market as an ordinary glass bottle. Instead, it is marketed as `Evacuated Sterile Non Pyrogenic Siliconized Bottle' for storage of plasma, and it is commercially so known in the market. Thus, the processes carried out by the app....
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....d of duty issued under various show cause notices or with reference to show cause notice dated 19-6-1990 proposing a revised classification under Tariff Heading 70.12 does not any longer survive. This classification has been proposed for the first time with the passing of the impugned order dated 27th August, 1992. The appellants having no notice for classification under Tariff Heading 70.07 for demands of duty for prior periods, the said demand would no longer be sustainable for six months preceding 19-6-1990, as held by the lower appellate authority. Notice for change in classification having been given on 27th August, 1992 by passing of the impugned order; the demand of duty sustained for six months preceding 19-6-1990 would also not be ....
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....aid impugned order. Strictly speaking, the Collector (Appeals) instead of sustaining the demands for six months preceding 19-6-1990 should have remanded the matter to the original authority for demand of duty, if any, against the new classification. Learned Advocate, however, submits that the remand at this stage would only be a mere futility inasmuch as six months period have already expired for issuing any show cause notice. Consequently, he prays or setting aside the demand of duty sustained by the lower appellate authority. For this proposition learned Advocate relies upon - (1) C.C.E. v. Bright Brothers - 1991 (52) E.L.T. 385. (2) IOC v. C.C.E. - 1991 (54) E.L.T. 110. (3) Jyoti Laboratories v. C.C.E., Cochin - 1....