Customs, Excise and Gold Tribunal - Delhi
Nestle India Limited vs Commissioner Of C. Ex., Chandigarh-Ii on 24 January, 2002
Equivalent citations: 2002(141)ELT422(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. Shri V. Lakshmikumaran with Shri M.P. Devnath, learned Counsels arguing the case for dispensing with pre-deposit of duty of Rs. 12,23,888.84 (rupees twelve lac twenty three thousand eight hundred eighty eight and paise eighty four) and penalty of equivalent amount submits that the applicant is engaged in the manufacture of Dairy Whitener. There was the dispute about classification of this material. He submits that the Hon'ble Punjab & Haryana High Court [1991 (51) E.L.T. 310 (P & H)] took the view that product is classifiable under sub-heading 0401.19; that the Apex Court [1998 (97) E.L.T. 402 (S.C.)] has upheld this judgment of the Hon'ble P & H High Court.
2. Learned Counsels submit that the applicant with a view to avail the benefit of Notification No. 181/88, dated 13-9-88 has applied for a licence and was granted a licence; that in terms of this Notification the applicant received metal containers duty free; that when the matter was pending decision before the Apex Court after the judgment of P & H High Court the Assistant Collector issued three show cause notices proposing demand of duty on the quantity of the metal containers used by the applicant(s) during the period from 30th July, 1991 to 31st December, 1991. The Assistant Collector adjudicated the case when the assessee filed an appeal before the Collector (Appeals). He allowed the appeal of the applicant. The order passed by the Collector (Appeals) attained finality inasmuch as no appeal was filed by the Department against this order.
3. Learned Counsel submits that the Collector, Central Excise, Chandigarh issued a Show-cause Notice on 19-12-1994 demanding duty on metal containers during the same period from 30th July, 1991 to 31st December, 1991. The Additional Commissioner of Central Excise, Chandigarh has confirmed the duty demand of Rs. 12,23,888.84 and imposing an equal amount of penalty.
4. Learned Counsel submits that since the issue for the period from 30th July, 1991 to 31st December, 1991 regarding demand of duty on containers had attained finality with the passing of the order by the Collector (Appeals) on 30th October, 1992 there was no question of raising the same demand for the same period on the same goods from the same assessee. He, therefore, prays that pre-deposit may be waived.
5. Ms. Ananya Ray, learned SDK has nothing to add.
6. We have heard the learned Counsels for the applicant(s). We note that the Order of the Collector, Central Excise (Appeals) had attained finality as there was no appeal against that order and therefore, the demand on the same goods for the same period of the same amount does not prima facie appear correct. In the circumstances pre-deposit of duty and penalty is waived.
7. The appeal should now come up for regular hearing on 19-2- 2002.