Customs, Excise and Gold Tribunal - Mumbai
Searle (India) Ltd. vs Commissioner Of Central Excise on 12 May, 1999
Equivalent citations: 1999(66)ECC188, 1999ECR306(TRI.-MUMBAI), 1999(112)ELT95(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. These are the applications filed by waiver of pre-deposit totally amount of Rs. 5,23,29,30//-. There is equal amount of penalty levied on the director, the penalty of the stay of recovery of the same.
2. Question involved in these Appeals are as to the classification of the product "pesticides" and "the technical grade" as well as "formulations" made by the appellants' factories at Panoli and Ankleshwar. Two show cause notices dated 19-1-1998 were issued seeking to classify the goods for the period from 23-7-1996 to 30-9-1997 under Tariff Item 29.42. The further question that arises for the Tribunal's consideration is effect of the amendment made in the Tariff Entry 38 in respect of Chapter Note 2 thereof in 1996.
3. Shri J.J. Bhat the ld. Sr. Counsel arguing along with Shri S.S. Gupta stated that the matter is not res integra as the question has been fully decided by the Delhi High Court in the case of Pesticides Manufacturers and Formulators Association of India v. Union of India and Ors. -1999 (30) RLT 231 (Del.) where the High Court held that the Circular dated 28-10-1997 issued by the CBEC was wrong which described that the goods would come under Chapter Heading 29.42. Shri Bhat during the course of the arguments invited our attention to the paragraphs 35, 38 and 39 of the said Delhi High Court Judgment. He also referred to the order passed by the Tribunal in Appeal No. 3139-R/98-Bom rendered in the case of Voltas Ltd. v. C.C.E. - Order Nos. C-II/461-462/WZB/99, dated 1-3-1999 1999 (107) E.L.T. 760 (Tribunal) where under similar circumstances the Tribunal has passed the order following said Judgment of the Delhi High Court held that the goods will come under Chapter No. 38.
4. As against this ld. JDR would argue that the Delhi High Court Judgment prima facie would not be applicable to the facts of the case because, in that case the Delhi High Court was considering the constitutionality of the Board's Circular dated 28-10-1997. He therefore contends that the matter has to be gone into the detail at the time of final arguments in disposing of the appeal.
5. We have considered the rival submissions. We are of the view that prima facie in terms of the appellants have made out a very strong prima facie case view in their favour on the basis of (a) Delhi High Court Judgment referred to above and (b) The Tribunal's Judgment in Voltas Ltd's case. On the final hearing of the appeals the question whether the bulk packing or retail packing of the product would amount to manufacture would be gone into in detail. In view of the precedent decisions, we feel that the demands made under the impugned order should be stayed and we waive pre-deposit of the amount demanded under the impugned orders. Ordered accordingly.