M. Santhanam, Member (J)

1. As common questions of law and fact are involved in both these appeals, they were taken up together. The appeals have been filed under the following circumstances:

2. The appellants are manufacturers of collapsible tubes falling under Item No. 27(e) of the First Schedule to the Central Excises and Salt Act, 1944. The appellants clear the plain tubes on payment of duty and thereafter subject the goods to the process of lacquering and/or printing. The appellants furnished price list showing therein the price of the plain tubes. In the remarks column, they have adverted to the printing, lacquering, etc. The Superintendent of Central Excise informed the appellants to score the remarks and hence they were scored. The appellants submit that they have not suppressed any fact and have intimated the Department the nature of the activities including that of printing and lacquering. The invoices have been checked by the Department and the relevant returns have been filed. While so, a show cause notice was issued on 1-12-1978 alleging that aluminium containers were cleared by mis-describing them as collapsible tubes for further lacquering and printing which were carried on within the factory. The appellants were directed to show cause as to why duty amount of Rs.3,18,512.93 (basic duty) and Rs. 9,852.37 (Special Excise Duty) should not be recovered from them for the period from 1-9-1977 to 30-9-1978.

3. Another show cause -notice was received during April, 1979 to show cause as to why a sum of Rs. 2,44,730.11 should not be recovered as basic duty and Rs. 12,236.92 as special excise duty for the period from 1-10-1978 to 28-2-1979 in respect of similar products.

4. A third show cause notice dated 27-9-1979 was issued to show cause as to why a sum of Rs. 3,04,161.95 as basic duty and a sum of Rs. 15,208.10 as special excise duty should not be recovered for the period from 1-3-1979 to 31-9-1979.

5. The appellants sent their replies containing similar allegations urging that there was no mis-declaration. 'Container' is a general category whereas 'Collapsible tube' is a special category. The appellants have been rightly classifying their items under 27(e). The appellants have also set out, in detail, the process of manufacturing collapsible tubes. They emphasised that printing and lacquering did not form part of the process of manufacturing collapsible tubes. Printing and lacquering cannot be stated to be incidental or ancillary to the completion of the manufactured product. The tubes, not printed and not lacquered, were, by themselves marketable commodities requiring nothing else for completing their manufacture. They denied their liability to pay the duty, basic and special. They have also urged that the demand was barred by time as per Rule 10 of the Central Excise Rules.

6. The Assistant Collector passed a common order on 16-7-1979 holding that the appellants had cleared collapsible tubes after printing and lacquering and without filing the price list for the same. He held that there was evasion of payment of duty by mis-declaring aluminium containers as mere extruded tubes.

7. An appeal was preferred on the ground that there was no suppression or wilful mis-statement and the Department was aware of the process of manufacture. The demand has not been issued within a period of six months. Since the period relates prior to the amendment of 27(e) and 27(f) under the Finance Act of 1980 (effective from 18-6-1980), the artificial definition under the Finance Act of 1980 should not be applied to the present case. The process of printing and lacquering does not amount to a process of manufacture. The appeals were dismissed oh the ground that the product manufactured by the appellants were used for the purpose of packing tooth paste, medicines, cosmetics, shaving cream, etc. and this fact would certainly place the products within the ambit of sub-item(f) meant for containers made of aluminium ordinarily intended for packag