Custom, Excise & Service Tax Tribunal
Skol Breweries Ltd vs Commissioner Of Central Excise, ... on 15 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. C/1073/04-Mum (Arising out of Order-in-Appeal No. 81/2004 (JNCH) dated 27.7.2004 passed by Commissioner of Customs (Appeals), Mumbai-II) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Skol Breweries Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-II Respondent Appearance: None for appellant Shri D.K. Sinha, Assistant Commissioner (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 15.3.2016 Date of Decision: 15.3.2016 ORDER NO Per: M.V. Ravindran
This appeal is directed against order-in-appeal No. 81/2004 (JNCH) dated 27.7.2004.
2. None appeared on behalf of the appellant nor there is any request for adjournment. Since the matter is of 2004, we take up the appeal for disposal.
3. Heard the learned departmental representative.
4. On perusal of records, it transpires that the appellant herein had imported empty 330 ml. aluminium can body vide bill of entry No.1034 dated 11.9.2003, claiming concessional rate of duty under serial No.28 of Notification No.236/89-Cus. dated 1.9.1989. The goods were assessed to duty extending the benefit of the aforesaid Notification. Subsequently a less charge demand was issued on the ground that the benefit of the Notification is not applicable to the goods as they were collapsible tubular container. The adjudicating authority confirmed the demand along with interest. On an appeal, the first appellate authority also upheld the findings of the adjudicating authority.
5. We find that both the lower authorities have come to a conclusion that the goods imported by the appellant are collapsible cans and cannot get concessional rate of duty under Notification 236/89, as the said exemption is only for aluminium casks, drums and cans of a capacity not exceeding 300 ltrs., but excluding collapsible tubular container. The appellant herein had produced opinion of Indian Institute of Packing, Mumbai, which was rejected and discarded by the first appellate authority on the ground that the opinion states the imported goods as semi-rigid and not collapsible. Since there was ambiguity, it was held that the appellant is not eligible for the benefit of Notification 236/89. We find that in the entire case records, the lower authorities have overlooked the certificate given by the Department of Metallurgy, Indian Institute of Science, Bangalore, dated 23.12.2003, wherein, on specific request of the appellant herein, the Assistant Professor, Department of Metallurgy, Indian Institute of Science, stated as under:-
As per your request, we have tested three samples of the empty Aluminium can in vertical position in our mechanical testing laboratory using the Instron servohydraulic testing machine. The load-displacement data for the three samples is attached with this letter.
The maximum loads for crushing of the cans were measured to be 0.603, 0.516, 0.704 kN, with an average value of 0.608 kN. On the basis of the can thickness, we have calculated the maximum pressure that the empty cans carry to be 1128 psi. This value is much larger than the typical metal specification of 390 psi prescribed for beer cans by the American Can Company.
Hence, we certify the Aluminium can samples supplied to us by you as Rigid Cans.
6. The above categorical averment of the appellant was not all considered while deciding the case in hand. There being no other contrary findings, we hold that the opinion expressed by the expert needs to be considered and we have to hold that the goods imported by the appellant are not collapsible containers and hence eligible for exemption under Notification 236/89-Cus.
7. The impugned order is set aside and the appeal is allowed.
(Pronounced in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) tvu 1 4