ITC LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, PATNA

JUDGEMENT

(1.) AS all the appeals arise out of the same impugned order passed by Commissioner (Appeals), they are being disposed of by a common Order.

(2.) VIDE the impugned order, the Commissioner (Appeals) has confirmed the order of the Assistant Commissioner vide which the cigarettes manufactured by the appellants and removed to their Quality Control Laboratory situated within their factory premises for quality tests during the period from January, 1991 to 28 -2 -1992, were held leviable to duty of excise. For arriving at the above conclusion, the Commissioner (Appeals) has relied upon the earlier decision of the Tribunal in the case of Godfrey Philips India Ltd. v. C.C.Ex. reported in 1993 (63) E.L.T. 186 (T). The Commissioner also observed that the said order was subsequently confirmed by the Honble Supreme Court when the appeal filed by M/s. Godfrey Philips India Ltd. was dismissed as reported in 1995 (79) E.L.T. A -156. It was held in the said decision of the Tribunal that loose cigarette sticks sent for laboratory and empirical test are dutiable being fully manufactured excisable goods. Dr. Samir Chakraborty, learned Advocate for the appellants submitted that the above judgment of the Tribunal relied upon by the authorities below, regarding leviability of excise duty on samples of cigarettes is distinguishable on facts. The type of tests undertaken by the appellants before the Tribunal in the earlier case reported in 1993 (63) E.L.T. 186, was different than the types of tests undertaken in the present cases. Whereas in the Godfrey Philips India case, cigarettes were consumed by actual smoking as an empirical test to test the quality of cigarettes, on the basis of which the Tribunal held that they were in fully finished form, the tests carried out in the present cases, are different.

(3.) DR . Chakraborty, learned Advocate drew our attention to the replies filed by the appellants before the original adjudicating authority, wherein the various tests being conducted by the appellants, have been shown as (i) Moisture Test; (ii) Loose Short Test; (iii) Firmness and Density Test; (iv) Free Burn Test; (v) Individual Weight Variability Test. He also submitted that unless these tests are carried out and the samples are cleared for quality test, the cigarettes are not allowed to be sent into the market. Dr. Chakraborty, learned Advocate further drew our attention to a subsequent decision in the case of Godfrey Philips India Ltd. reported in 1999 (114) E.L.T. 70 (Tribunal) = 1999 (33) RLT 499 (CEGAT) wherein the earlier decision of the Tribunal in the case of Godfrey Philips own case was distinguished on the types of tests carried out by them and a different view was taken. As such, he submits that as the tests in the instant cases are not by actual smoking of cigarettes, the same cannot be considered in the light of the earlier judgment of the Tribunal reported in 1993 (63) E.L.T. 186 (Tribunal), the same needs to be adjudged by applying the ratio of a subsequent decision reported in 33 : RLT. In this view, he prayed for setting aside the impugned order and allowing the appeals.