TaxTMI 
TaxTMI 
2000 (7) TMI 129
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....them including the Water Storage Tanks and other products introduced subsequently viz. Baby Car, Swing, Rocker, Slides, Play Table, Play Pool, Baby Chair and Desk. 2.On 24-4-1997, Anti-Evasion Branch officers visited the factory and pursuant to the enquiries made by them a Show Cause Notice dated 1-5-1997 (herein after referred to as first SCN) demanding duty amounting to Rs. 18,82,080/- in respect of moulding powder prepared by them and consumed captively in the manufacture of exempted final products during the period October, 1996 to March 1997 was issued by Commissioner (Central Excise), New Delhi. This was adjudicated vide O/o No. 32/97-D-III, dated 18-11-1997 wherein the Commissioner found that conversion of granules into powder amo....
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.... actual meaning of the goods under clearance and which were therefore, appropriately classifiable and liable to duty as under : - (i) Rockers, Slides : Toddler Swings, Fan Fliers are mainly meant for the children playground and are classifiable under heading 9506 of the Central Excise Tariff Act 1985 with Basic Excise Duty @ 15% Adv. alongwith SED @ 15% of BED during the year 1992-93 up to Feb. 1997 and @ 13% Advance (sic) thereafter was payable. (ii) Activity Desks and Chairs : Play Tables thereof were furnitures classifiable as under seats under heading 94.01 and other furniture's under heading 94.03 and the BED @ 20% Adv. alongwith SED A 15% o....
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....o duty once again. He found that the party had not declared this vital fact of 'Pulverisation' and therefore justified the invoking of the longer period. He also found from the utility and use of the other items where classification was impugned in the SCN to take them away from the scope of being a toy as they ceased to be an object of entertainment for the children. He classified them as proposed in the second SCN and confirmed the duty demanded and imposed a penalty of Rs.2,50,29,984/- under the provisions of Section 11 AC and held them liable to pay interest under Section 11 AB on the amount of excise duty from the day it became due. The appeal E/732/99-C is against this order. 5.We have heard both the sides in these appeals and afte....
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....core, in our opinion, there is sufficient evidence................... and hold 'moulding powder' to be eligible (sic) in the facts of this case as determined by the Commissioner. (ii) The finding that MODVAT credit will not be eligible and inputs used in manufacture of such Moulding Powder cannot be upheld in view of Chamundi Steel Re-Rolling Mills - 1996 (81) E.L.T. 563 (T) and Sinter Plast Containers case 1996 (66) ECR 531 (T) and other decisions where it was held that credit could not be denied if duty paying documents were available. The matter is therefore, required to be remanded back to the Adjudicator for ascertaining the quantum of eligibility and pass an order after considering the e....
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....determined by an observation of the adjudicator. (vii) As regards 'Bath Tub' classified by him under 3922.10, from the Catalogue produced it is seen that the PLAY POOL is used by Adults both Males and Females and it is said to have a slide inside, a bath tub has no slides inside. In any case the actual use is to be established before the items can be classified as Bath Tub under 3922.10 or a play thing. (viii) Since facts are required to be re-determined especially regarding the end use and commercial parlance Test, the classification as settled by the impugned order cannot be upheld, it is required to be set aside. If by applying the Commercial parlance Test and the HSN note....