Customs, Excise and Gold Tribunal - Delhi
Raptakos Brett And Co. Ltd. vs Collector Of Central Excise on 23 March, 1998
Equivalent citations: 1998(60)ECC649, 1998(101)ELT146(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. The appellants herein filed a classification list for their products "Fructodex in Water" and "Fructodex Saline" and claimed 1% exemption from duty for control samples in terms of Notification 171/70, dated 21-11-1970. Since control samples were not packed in a packing different from normal packing, a show cause notice dated 28-2-1991 was issued to them proposing denial of the benefit of the Notification. On the same issue, a notice was issued on 14-1-1991 proposing recovery of differential duty of Rs. 11,188/- on control samples. The Assistant Collector of Central Excise held that since the condition of the Notification at SI. No. 24 of the Table annexed thereto is not satisfied because the Notification requires samples to be packed in a form distinctly different from the regular trade packing, the appellants were not entitled to the benefit of the Notification. He, therefore, approved the classification list without extending the benefit of the Notification and also confirmed the demand as a consequence of such approval of the classification list. The appellants filed two appeals before the Collector of Central Excise (Appeals) which were disposed of by a common order upholding the order of the Assistant Collector. Hence this appeal.
2. Learned CA, Shri Gupta representing the appellant company submits that there is no difference in packing between the normal trade packing and the samples, except for the stamping of the words "samples - not to be sold", and it would not be feasible to have separate packing for the samples and the normally traded products. He further submits that duty has been demanded on samples which have never been cleared from the factory and, therefore, the demand cannot be sustained.
3. Learned DR reiterates the findings of the authorities below drawing particular attention to the notice annexed to the order-in-original which clearly shows that the goods in question had been cleared on gate passes on payment of duty.
4. We have carefully considered the rival submissions. Since admittedly the condition of the Notification regarding different packing is not fulfilled by the appellants, they have rightly been denied the benefit of the Notification in question. The argument that duty has been demanded on unmarketable products which have lost their marketability since they have been stored for a period of 3 months beyond the expiry date is a point which the appellants have raised before us for the first time in the course of arguments and, therefore, cannot be permitted at this stage. Further this point is not substantiated and it is contrary to the stand taken by the Department as reflected in the show cause notice which clearly shows that these two products "Fructodex Water" and "Fructodex Saline" were cleared on gate passes from July, 1990 to November, 1990 on payment of duty (the demand in this case relates to differential duty). Having regard to the above facts, we see no infirmity in the order of the authorities below and accordingly confirm the impugned order and reject the appeal.