ORDER
C. Satapathy, Member (Technical)
1. After hearing both sides for some time, we find that the appeal itself can be disposed of at the stay stage itself. As such, we waive the pre-deposit of duty and penalty and proceeded to hear the main appeal.
2. Shri D.B. Shroff, learned advocate for the appellants states that the issue in the present case is whether a marketable plastic bottle comes into existence during the manufacture of an intravenous infusion, known as Haemaccel, falling under Chapter 30, which are manufactured in a continuous process with the help of a ‘form, fill and seal machine.’ He further submits as follows:-
i) The form, fill and seal machine is manufactured by a company known as Rommelag. It can be seen from the Description and Working Principle of “Bottlepack” Plant by Rommelag (Exhibit “A1” Page 34) and from what has been set out in paragraph 2 of the appeal, that at no stage does a marketable plastic bottle comes into existence. The medicine is in fact filled in the plastic pouch when the plastic is still hot. The plastic bottle has no cap at this stage and it cannot even be removed from the mould because the mould will not open. On completion of filling, the filing mandrel returns to its initial position. In the meantime, the filled container as hardened with the exception of its head area, which remains hot and plastic. The head mould closes around this area and tightly seals the container while the head mould forms the head shape. This is not a cap, which can be opened. The filled container merely gets hermetically sealed and moulded. After sufficient cooling the entire mould system opens and the sealed container drops or is removed by means of optional delivery devices such as a gripper.
ii) The issue is squarely covered by judgment of this Hon’ble Tribunal in the case of CCE v. Milk Plant – 1995 (79) ELT 315 (T).
iii) The CBEC has also issued a Circular bearing No. 11/89 dated 13.3.1989 (Exhibit B-1 p 37) clarifying that no separate pouch made from paperboard, plastic etc. comes into existence in an identifiable form in a marketable condition and that the container, which is formed in the machine is incapable of being taken out and marketed as a separate product in its own right.
3. We have heard Shri A. Chopra, learned J.D.R. who supports the impugned order.
4. After hearing both sides and perusal of case records, we find that the aforecited Circular No. 11/89 dated 13.3.89 issued by the Board is categorical that when a container as such does not come into existence in an identifiable form as a separate entity in marketable condition and the container which is formed in the machine is incapable of being taken and marketed as a separate product in its own right, the question of assessing the container separately does not arise. We are of the view that the circular is squarely applicable to the case of the appellants and therefore, we set aside the impugned order and allow the appeal.
(Pronounced in Court)