2002 (11) TMI 598

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....ntended for sale", they are classified under Chapter sub-heading 0401.14 and if not under Chapter sub-heading 0401.19. We read the relevant sub-headings : Sub- heading No. Description of goods Rate of duty 0401.14 Concentrated (condensed) Milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale 10% 0401.19 Other Nil 2. M/s. Nestle (India) Ltd. manufacture sweetened condensed milk. Part of the goods are packed and sold in unit containers of 400 gms. They pay central excise duty under sub-heading 0401.14 on those goods. They also packed condensed milk in barrels. They cleared those goods at 'Nil' rate of duty under sub-heading 0401.19. The present dispute relates to classifi....

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....uce Marketing & Processing Corpn. Ltd., 1988 (34) E.L.T. 160 (T) and Agro Foods Punjab Ltd. v. CCE, 1990 (49) E.L.T. 404 (T) in support of this submission. It has also been pointed out that in the appellant's own case, with regard to sweetened skimmed milk sold in barrels, the Tribunal had held that for a prior period that sales in barrels, as in the present case, would not merit classification as put up in unit containers and intended for sale. It has also been pointed out that the department had accepted this decision and had not preferred any appeal in the Apex Court. 4. On issue of limitation, the submission of appellants is that since they had been packing the goods in barrels and removing them for several years and the classif....

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....ariations in quantity cannot be the basis for contending that goods are not put up in unit containers. He also pointed out that the decision in the case of HP Horticulture Produce Marketing & Processing Corpn. Ltd., and Agro Foods were distinguishable inasmuch as those decisions related to selling of goods in loose quantities and packing was not to the brim of the containers. The learned Counsel also pointed out that, that billing was based on actual quantity also does not change the situation inasmuch as invoice was for so many barrels and each barrel was treated as a unit. The learned Counsel therefore contended that the Commissioner was right in passing the impugned order. 6. This Tribunal considered the scope of the expression '....