NESTLE (INDIA) LTD. Vs. CCE

JUDGEMENT

(1.) Concentrated milk is liable to central excise duty under Chapter Heading 0401.00. Classification and rate of duty dependent on the container of packing. If the goods are "put up in unit containers and ordinarily intended for sale", they are classified under Chapter sub -heading 0401.14 and if not under Chapter sub -heading 0401.19. We read the relevant sub -headings:

(2.) M/s. Nestle (India) Ltd., manufacture sweetened condensed milk. Part of the goods are packed and sold in unit containers of 400 gms. They pay central excise duty under Sub -heading 0401.14 on those goods. They also packed condensed milk in barrels. They cleared those goods at 'Nil' rate of duty under sub -heading 0401.19. The present dispute relates to classification and rate of duty for sweetened condensed milk packed in barrels. Under order impugned in these appeals, the Commissioner of Central Excise, Chandigarh has held that the sweetened condensed milk packed in barrels was classifiable under Sub -heading No. 0401.14 as concentrated (condensed) milk 'put up in unit containers and ordinarily intended for sale. Differential duty demand on account of the revision of classification and imposition of penalty have been made in the order.

(3.) The appellants resist revision of classification on merits as well as on the ground of limitation. Their submission is that packing in barrels is not putting up in unit containers. They point out that individual barrels contained different quantities of condensed milk and the sale of the goods is based on the actual quantity delivered in each barrel. It has been shown from invoice covering the sales that quantity in each barrel varied from 280 kgs. to 290 kgs. The appellants submit that when the transaction is based on actual quantities contained in each container, such sales cannot be called 'put up in unit containers and ordinarily intended for sale. They point out that it is well settled that only cases where sale takes place based on the assumption that each container contains a unit quantity. The requirement for being put up in unit containers and ordinarily intended for sale is satisfied. They have relied on the decision of this Tribunal in the case of CCE v. HP Horticulture Produce Marketing and Processing Corporation Ltd. 1988 (34) ELT 160 (T) and Agro Foods Punjab Ltd. v. CCE, 7990 (27) ECC 277 (T) : 1990 (49) ELT 404 (T) in support of this submission. It has also been pointed out that in the appellant's own case, with regard to sweetened skimmed milk sold in barrels, the Tribunal had held that for a prior period that sales in barrets, as in the present case, would not merit classification as put up in unit containers and intended for sale. It has also been pointed out that the department had accepted this decision and had not preferred any appeal in the Apex Court.