NESTLE INDIA LTD. Vs. CCE

JUDGEMENT

(1.) In these two Appeal, common issue involved is whether the benefit of Notification No. 181/88 -CE, dated 13.5.1988 is applicable in respect of metal containers used by M/s. Nestle India Ltd. for packaging their product "Everyday Dairy Whitner".

(2.) Shri B.L. Narasimhan, learned Advocate, mentioned that the Appellants manufacture, inter alia, "Everyday Dairy Whitner" which is classifiable under Sub -Heading 0401. 19 of the First Schedule to the Central Excise Tariff Act; that the Revenue sought to classify the same under Sub -Heading 0401.13 as "Skimmed milk powder";, that the Punjab and Haryana High Court classified the product under sub -Heading 0401.19 as that the said judgment has been upheld by the Supreme Court as reported in 1998 (97) ELT 402 (SC). He, further, mentioned that Notification No. 181/88 -CE grants complete exemption from payment of duty to metal containers intended to be used for packing of goods specified therein namely (i) whole milk powder (ii) Skimmed milk powder (SMP) and (iii) Milk powder including SMP for infants and baby foods; that they were granted a 16 licence for availing the benefit of the Notification; that in the licence, milk powder was specifically indicated as the product for the packing of which the metal containers would be bought duty free.

(3.) In respect of Appeal No. E/2586/2001 -D, the learned Advocate submitted that when the issue regarding the classification of Dairy. Whitner was pending decision before the Supreme Court, three show cause notices dated 9.10.1991 and 10.4.1992 proposing to dermand (sic demand) duty on the metal containers used during the period from 30.7.1991 to 31.12.1991 under Rule 196 of Central Excise Act, 1944 were issued to them; that the Assistant Collector confirmed the demand of duty under Adjudication Orders dated 14.5.1992 and 29.5.1992; that, however, on Appeal, the Collector (Appeals) under Order -in -Appeal Nos. 865 to 867/CE/CHD/92 dated 30.10.1992 allowed their appeals and set aside the Adjudication Orders; that the said Order -in -Appeal has attained finality as the same has not been appealed against by the Department before the Appellate Tribunal.