TaxTMI 
TaxTMI 
2002 (7) TMI 160
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....ol are not covered by the provisions of the Central Excise Act, 1944 read with Central Excise Tariff Act, 1985 (hereinafter referred to as 1944 Act and 1985 Act respectively). 2.The dispute in the present appeal relates to the product namely 'Emami Talcum Powder' manufactured by the appellants, with one of the ingredients as Ethyl Alcohol. The period involved in the present appeal relates to 1-1-91 to 31-3-94. The demand has been confirmed on the ground that some of the samples tested during the period from 5-9-92 to 20-4-93 tested negative towards the presence of alcohol and as such, Talcum Powder classifiable under Central Excise Act, is leviable to duty of excise. On the other hand, the appellants' contention is that inasmuch as the g....
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....llants were maintaining elaborate records under the 1955 Act and proper check and control over the alcohol supplied to the appellants and used in its factory, was being exercised by the authorities under the 1955 Act. The procedure followed in this regard was as under :- (a) Annual permits were issued to the appellants for Ethyl Alcohol required at its factory for use in manufacture of its products. In the permits, the names of Bonded Laboratories from where the alcohol was to be lifted were mentioned. Applications for lifting the alcohol along with the annual permits were submitted to the Bonded Laboratories. Alcohol was, thereafter, supplied to the appellants by the Bonded Laboratories in the p....
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....tained at the factory under the 1955 Act. (f) Under the 1955 Act there was no self removal procedure during the entire relevant period. The final products were cleared from the factory under cover of Forms AR 2. As per the procedure under the 1955 Act read with the 1956 Rules, the Excise Officers used to make assessments in Form AR 2 under the heading "Assessment Memorandum". While making the assessment, total quantity, total value, rate of duty and amount of duty payable used to be mentioned. The clearances from the factory were then allowed only on payment of the duties so assessed. Thus, on the clearances from the factory, physical control was exercised by the authorities under the 1955 ....
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.... the Central Excise Department. He also draws our attention that the demand was confirmed against them on identical grounds in respect of their another Unit situated at BT Road. The matter was taken up by the Tribunal and vide its Final Order No. A-159/Kol/2001, dated 23-1-2001 [2001 (133) E.L.T. 224 (T)], the demand was set aside. He submits that the demand in that case was based upon the failure of the sample testings. Even though the Tribunal observed that such failure of the samples for presence of alcohol could have been on the ground of wrong methods of testing applied by the chemical examiner or on account of the goods having been kept in the open for a longer period, resulting in evaporation of alcohol. As such, he submits that the ....
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....aminer, Customs House, Calcutta and the samples have tested positive towards alcohol except a few, for which a separate show cause notice is pending adjudication. They had also informed their jurisdictional Central Excise Authorities about the Emami Talcum in the Classification List filed by them that the same is covered by the 1955 Act, as the same contained alcohol. He also submits that under the 1955 Act, duty was leviable @ 100%, whereas under the 1985 Act, it was 100% for some time and was further reduced to 70%, and for subsequent years, it was 50%. As such, the appellants, in fact, stood to gain if the goods would have been classifiable under the Central Excise Act instead of 1955 Act. He also draws our attention to the various decis....
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....Medicinal and Toilet Preparations (Excise Duties) Act, 1955. The returns were being filed by them with the Excise Officers and the assessments were also being done by the Excise Officers under 1955 Act. As against that, the Revenue has not produced any evidence to show that such alcohol being received by them under Annual Permits and used by them, as reflected in the statutory records and returns maintained under the 1955 Act, was, in fact, not being used in the manufacture of the Talcum Powder. Their entire cases are based upon the failure of some samples drawn during the period from September, 1992 to April, 1993. It is also seen that majority of the samples during the said period, tested positive towards presence of alcohol under the Tal....