Per Lajja Ram: M/s Dalmia Industries Ltd.,Bharatpur (Rajasthan) (hereinafter referred to as 'DIL'), being aggrieved with the order-in-original No. 153/92-Collector, dated 3.11.1992 passed by the Collector of Central Excise, Jaipur, have filed the present appeal praying for setting aside the impugned order.

2. M/s DIL brought metal containers (other than those of aluminium), classifiable under sub-heading No. 7310.00 of the Schedule to the Central Excise Tariff, Act, 1985 (herein after referred to as the Tariff), from outside, during the period from September 1991 to Feb., 1992, without payment of Central Excise duty, under exemption notification No. 181/88-CE, dated 13.5.1988 (as amended by notification No. 250/88-CE, dated 1.9.1988), for packing of their product sweetened - vitaminised partially skimmed milk powder (SMP). It was alleged in the show cause notice dated 2.4.1992 that the said metal containers used for packing of partially SMP were not eligible for exemption under notification No. 181/88-CE (as amended), and Central Excise duty amounting to Rs. 1,041,424/ - was demanded from them under Rule 196 of the Central Excise Rules 1944 (hereinafter referred to as the 'Rules'). Penal provisions under Rule 210 and Rule 173Q of the Rules were invoked. The Collector of Central Excise, Jaipur who adjudicated the matter noted that in view of the decision of the Punjab and Haryana High Court in the case of Food Specialities Ltd. Vs. Union of India, 1991 (51) ELT 310, and of the Tribunal decision in the appellants' own case vide Order No. E/74/92-D, dated 14.2.1992, there was no dispute that the goods produced by the appellants was not SMP and that the said containers were not eligible for exemption under notification No. 181/88-CE. He confirmed the duty demanded under Rule 196 of the Rules, read with proviso to Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the' Act).

3. The matter was posted for hearing on 3.1.1995 when Shri B.B. Julka, Advocate appeared for the appellants, Shri R.K. Kapoor, SDR represented the respondent.

4. Shri B.B. Julka, the learned Advocate narrated the background of the case and submitted that they had pleaded before the lower authorities that their goods were not SMP, but partially SMP. Departmental authorities forced them to classify the goods as SMP and they have to avail of the exemption with regard to metal containers under the circumstances. He submitted that in the show cause notice no duty had been demanded under Section 11-Aof the Act. He referred to the Punjab and Haryana High Court's decision in the case of Food Specialities Ltd. Vs. Union of India, 1991 (51) ELT 310, and stated that they have not violated the provisions of Chapter-X of the Rules, and that the order passed by the Collector of Central Excise, Jaipur was not maintainable.

5. Shri R.K. Kapoor, the id. SDR replied that the appellants had sought permission under Chapter-X Procedure of the Rules for SMP, whereas the goods produced by them were partially SMP, for which exemption under notification No. 181/88-CE was not available. He submitted that it was a case of misdeclaration and that while applying for CT 2 certificate under Chapter X Procedure, correct description of the goods was not given. They had not submitted that their product was partially SMP for which no exemption was available. The Ld. SDR relied upon the Tribunal's decision in the case of Steel Authority of India Vs. Collector of Central Excise, 1989 (42) ELT 686 (Tribunal).

6. In rejoinder, the Ld. Advocate stated that the citation relied upon by the Ld. SDR was about limitation only.

7. We have carefully gone through the facts and circumstances of the case, and have given our due thought and consideration to the submissions made by both the sides.

8. The appellants were engaged in the manufacture of various milk products. Under exemption notification No. 181/88-CE, dated 13.5.1988 (issued in exercise of the powers conferred on the Ce