SABENA DETERGENTS PVT. LTD. AND Vs. CCE

JUDGEMENT

(1.) M /s. Alpha Detergents, appellants in Appeal No. E/414/2002 -were engaged in the manufacture of scouring powder in bulk packs of 40 kg., 60 kg. and 90 kg. in gunny bags during the material period [1.3.94 to 31.12.95]. The product, classified under SH 3405.50, was sold to M/S. Sabena Detergents, appellants in Appeal No. E/412/2005 and the latter repacked the goods into 1/2 kg., 1 kg. and 2.5 kg. retail quantities in polythene bags and marketed the same. M/s. Alpha Detergents paid duty on their transactiorial value. The department, in a show -cause notice dated 2.7.96, alleged that as the party who purchased scouring powder in bulk bags.from M/s. Alpha Detergents was related to the latter and the item had not attained the marketable stage, the value adopted by M/'s. Alpha Detergents for payr(SIC) of duty was not the correct assessable value and further that the correct assessable value required to be determined on the basis of the value of the retail packs marketed by the buyer. Accordingly, the show -cause notice worked out a value for the goods cleared by M/s. Alpha Detergents to M/s. Sabena Detergents during the above period and raised a differential duty. It also proposed penalties on M/s. Alpha Detergents and M/s. Sabena Detergents as also on M/s. Scientific Components and Processors Pvt. Ltd., Shri Suresh Jayaseelan, Managing Director of M/s. Sabena Detergents Pvt. Ltd. and Mrs. R.D. Jayamani, Managing Director of M/s. Alpha Detergents Pvt. Ltd. The proposals in the show -cause notice were contested by the parties. The demand of duty was contested by M/s. Alpha Detergents on merits as well as on limitation. In adjudication of the dispute, learned Commissioner confirmed demand of duty of Rs.35,26,866/ - against M/s. Alpha Detergents for the above period by invoking the extended period of limitation and imposed a penalty of Rs.3.00 lakhs on them under Rue 173Q of the Central Excise Rules, 1944. He also imposed penalties under Rule 209A on all the parties.

(2.) THESE appeals are directed against the above order of the Commissioner. It is submitted by learned Consultant for the appellants that, in a similar case of M/s. Alpha Detergents for the period February 1996 to March 1997, the South Zonal Bench, Bangalore has set aside demand of duty raised by the Commissioner of Central Excise (Appeals), Bangalore in Order -in -Appeal No. 142/2002 -CE dated 14.3.2002. From the further submissions made by learned Consultant in this connection, it appears that Order -in -Appeal No. 142/2002 ibid had been passed in an appeal against an order of the Assistant Commissioner who had followed Order -in -Original No. 56/97 dated 21.10.97 of the Commissioner of Central -*' Excise, Bangalore, the order impugned in the present appeals. In 6rder -in -Appeal No. 142/2002 ibid, the appellate Commissioner proceeded to deal with the assessees' appeal after observing that Order -in -Original No. 56/97 passed by the Commissioner of Central Excise, Bangalore had not been set aside or its operation had not been stayed. Learned Commissioner (Appeals) otherwise did not endeavour to distinguish the case made out in Order -in -Original No. 56/97, which is the present impugned order.

(3.) DEALING with the impugned order, we find that the facts considered therein are no different from those considered by the Bangalore Bench in Final Order No. 61/2006 dated 12.1.2005 passed in Appeal No. E/460/201 of M/s. Ecof Detergents Pvt Ltd. Learned Consultant submits that the name of M/s. Alpha Detergents Pvt. Ltd. was changed to M/s. Ecof Detergents Pvt. Ltd. This fact also is seen to have been noted by the Bangalore Bench in the above final order. Obviously, the assessees in the present batch of appeals is the same as the assessee who moved the Bangalore Bench. Their modus operandi was the same for both the periods of dispute. During these periods, there was no fiction of manufacture created under the Central Excise Tariff Act in relation to scouring powder falling under Heading 34.05 of the CETA Schedule. In this factual scenario the decision of the Bangalore Bench must be squarely applicable to the facts of the present case. Para 5 of the final order passed by that Bench is extracted below: