Judgment:
2. Shri Pankaj Mullick, learned Advocate, submitted that both the applicants manufacture PET Bottles; that the bottles manufactured by B.R. Oil Mills were inscribed with the words BRPET, BR PET HAR EXC, BR PET HAR EXADCPL; that similarly bottles manufactured by M/s. S.P.Packagings were inscribed with the words SP-PET, SP PET HAR EXC, and SP PET HAR EXADCPL; that in the month of June, 2000, the dyes of both the applicants needed to be reconditioned and were sent to M/s. Kuldeep Engineering Works; that after the dyes were repaired, due to oversight, the dyes of B.R. Oil Mills were sent to the factory of M/s. S.P.Packaging and the dyes of S.P. Packaging were sent to B.R. Oil Mills as the dyes of both the applicants were of the same size and shape; that the applicants could not detect the fact of dyes having been exchanged and they started using the same for manufacturing PET bottles; that the Additional Commissioner under the impugned Order has confirmed the demand of duty on the ground that both the Applicants were using the brand name of each other on the PET bottles and as such the benefit of SSI Exemption Notification No. 9/2000/C.E. is not available to them.
The learned Advocate contended that the mistake has occurred on account of change in the dyes received after being repaired from M/s. Kuldeep Engineering Works. He also relied upon the Board's Circular F. No.213/28/87-CX. 6, dated 27-11-87 wherein it has been clarified that the packaging material bearing the brand name of large manufacturer/traders would not be hit by the mischief of notification.
3. Opposing the prayer Shri P.M. Rao, learned Departmental Representative, submitted that if the mistake had been occurred on account of getting the wrong dyes from the repairer, the mistake should have been known to the applicants immediately after they had put the dyes in use; that the appellants have continued to manufacture the goods i.e. pet bottles for a number of days, probably 20 days; that this goes to show that there was no mistake. He also submitted that the Board's Circular F. No. 213/28/87-CX. 6, dated 27-11-87 is not applicable as the brand name on the pet bottles is not of a manufacturer or trader using these bottles for packing.
4. We have considered the submissions of both the sides. In view of the fact that the appellants went on using the dyes for 20 days, they have not made out a strong prima facie case for waiver of pre-deposit of entire amount of duty. Further we agree prima facie with the learned Departmental Representative that the Board's Circular dated 27-11-87 is not applicable in the present matters. We therefore, direct M/s, S.P.Packagings to deposit Rs. 40,000/- and M/s. B.R. Oil Mills to deposit Rs. 20,000/- within six weeks from today. On complying with this direction, there will be waiver of remaining amount of duty and the recovery of the same will remain stayed during the pendency of the appeals. Both the appeals are posted for reporting compliance on 7-11-2003.