1999 (10) TMI 680
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....pay the Central Excise Duty on the impugned metal containers and that they were eligible to benefit of Notification No. 181/88-C.E. Nowhere the appellants have contended as to how they could not be called upon to discharge their duty liability on the metal containers used by them in the packing of 'Sapan Milk Special - partially skimmed powder'. Notification No. 181/88-CE exempts metal containers and parts thereof (other than those of aluminium), if they were intended to be used for packing of skimmed milk powder, subject to specifications. It has been the appellant's claim that their "Partially skimmed milk powder' is different from skimmed milk powder and their appeal has been allowed on this point by the CEGAT. In view of this fact no ex....
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....judice before the Supreme Court and the adjudicating officer having gone by extraneous considerations are misplaced arguments on their wrong and prejudiced perception of facts of this case. The fact is that as per the applicable and operative decision of the CEGAT, the appellant's product is not to which the exemption is available to the metal containers under Notification No. 181/88-C.E.; the fact is that this exemption cannot be availed on the plea that the Department has gone in appeal; the fact is that the adjudicating officer has gone by the facts of this case and not by any extraneous considerations since if the Supreme Court could have stayed the CEGAT decision, then the appellants product would have perhaps continued to be not diffe....
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.... Sapan Dairy Special' is a partially skimmed milk powder classifiable under sub-heading 0401.19 of the Tariff and is different from skimmed milk powder; that initially the Department accepted the claim of the appellant and approved the classification of the said goods under sub-heading 0401.19. The Asstt. Collector held that the goods manufactured by the appellants were classifiable under sub-heading 0401.13 as skimmed milk powder; that pursuant to this finding various demands were confirmed. Ld. Counsel submitted that the ld. Collector (Appeals) confirmed the order passed by the ld. Asstt. Collector; that the Department had issued a certificate for procurement of metal containers at Nil rate of duty under Chapter X procedure under Notifica....
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....d 22-1-1997, by the majority decision held that : "In the above circumstances, the error is required to be rectified and therefore, the operative portion of the order is hereby modified to say that there was no misdeclaration or suppression of facts or violation of Rule 196 as the containers received under bond had been undisputably utilised for packing the above product and the bond itself, therefore, stood discharged to the extent of the quantity so utilised. The net result of the correction of the above error is that the appeal stands accepted. It is ordered accordingly." Ld. Counsel therefore, submitted that provisions of Rule 196 of the Central Excise Rules can be invoked only, if any, excisable goods obtained under Rule 196 are not ....