"http://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 1 of 8 \nCASE NO.:\nAppeal (civil) 1506-1508 of 2000\nPETITIONER:\nDharampal Satyapal\nRESPONDENT:\nCommissioner of Central Excise, Delhi-I, New Delhi\nDATE OF JUDGMENT: 21/04/2005\nBENCH:\nS.N. VARIAVA, Dr. AR. LAKSHMANAN & S.H. KAPADIA\nJUDGMENT:\nJ U D G M E N T\nKAPADIA, J.\n Whether, in the facts and circumstances of this case, the \nTribunal was justified in upholding the order of the \ncommissioner dated 28.4.1998 with respect to (a) the \nexcisability of the kimam and classification thereof under sub-\nheading 2404.49 prior to 23.7.1996 and under sub-heading \n2404.40 w.e.f. 23.7.1996; (b) rationale for invoking the \nextended period of limitation under the proviso to section \n11A(1); and (c) eligibility for the benefit of proforma/modvat \ncredit in respect of the chewing tobacco kimam, is the question \nwhich arises for determination in these civil appeals filed by the \nappellant - assessee under section 35-L(b) of the Central Excise \nAct, 1944 (hereinafter referred to for the sake of brevity as \"the \n1944 Act\").\n Briefly, the facts of the case are that M/s Dharampal \nSatyapal (assessee), having its head office at 7/22, Ansari Road, \nDarya Ganj, New Delhi and factories at 96, Okhla Industrial \nEstate, Phase-III, New Delhi / E-1, Maharani Bagh, New Delhi \nwas found engaged in the manufacture of compound (kimam) \ncontaining chewing tobacco under sub-heading \n2404.40/2404.49. The assessee, a partnership firm, was not \nregistered with the Central Excise department as a \nmanufacturer. The assessee appeared to have been \nmanufacturing and clearing the said compound (kimam) \nwithout the knowledge of the department. \n During the investigations carried out by the department, \nthe assessee claimed that the compound (kimam) manufactured \nby them was moved in \"balties\" on stock transferred basis to \ntheir three branded chewing tobacco manufacturing factories \nlocated at 68/2, Okhla Industrial Estate, Phase-II, New Delhi, \nNoida (UP) and Barotiwala (HP). The assessee claimed that the \ncompound (kimam) was an intermediate item, not marketable \nas such and was, therefore, not excisable. Enquiries were made \nby the department at Barotiwala (HP), where the assessee \nclaimed to have transferred the compound (kimam). The said \nenquiries indicated receipt of the said compound (kimam) in \nbalties at Barotiwala during the period 16.2.1995 to 20.12.1996.\n Based on the above investigations carried out by the \ndepartment, it appeared that the compound (kimam) was \nexcisable and had been manufactured and cleared without \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 2 of 8 \nobtaining registration and without payment of duty on the \nclearances during the period 1.4.1994 to 3.10.1996. \n Accordingly, a show-cause notice dated 19.6.1997 \nanswerable to the commissioner was served upon the assessee \ndemanding duty under rule 9(2) of the Central Excise Rules, \n1944 read with proviso to section 11A(1) of the said 1944 Act \nwith interest under section 11AB. By the said show-cause \nnotice, penalty under rule 173Q and section 11AC was also \nproposed to be levied. The show-cause notice alleged \nsuppression of material facts with intent to evade payment of \nduty. It referred to manufacture of the compound (kimam) \nwithout obtaining registration. It also referred to clandestine \nclearance of the said compound (kimam) without maintenance \nof statutory records.\n After considering the defence put forth by the assessee, \nthe commissioner held, vide order dated 28.4.1998, that sada \nkimam (raw-material) was purchased by the assessee and \nblended with saffron, spices, perfumes and menthol; that \nconsequent upon such blending, a compound (kimam) emerged, \nwhich was a separate identifiable product; that from time to \ntime, the assessee used to purchase from the market a similar \ncompound (Lucknowi kimam) from M/s Globe Traders and \nM/s Laxmi Fragrances Pvt. Ltd.; that the compound (kimam) \nwas used in the manufacture of the chewing tobacco which was \nsold under the brand name \"Tulsi Zafrani Zarda\". The \ncommissioner further found that M/s Globe Traders and M/s \nLaxmi Fragrances Pvt. Ltd. were manufacturers of similar \ncompound. That, the said M/s Globe Traders and M/s Laxmi \nFragrances Pvt. Ltd. were manufacturing their compound in \ntheir registered units; they were license holders; they were \nmaintaining records under the excise law. In the circumstances, \nthe commissioner came to the conclusion that the compound \n(kimam) manufactured by the assessee in their \nunregistered/unlicensed factories at 96, Okhla Industrial Estate, \nPhase-III, New Delhi / E-1, Maharani Bagh, New Delhi was \nexcisable. By the impugned decision, the commissioner came \nto the conclusion that the assessee had deliberately and without \nany reason whatsoever suppressed its affairs and they had \ndeliberately failed to obtain registration which circumstances \nconstituted evidence of suppression and, therefore, the \ndepartment was right in invoking the extended period of \nlimitation.\n Aggrieved by the above order of the commissioner dated \n28.4.1998, the assessee challenged it in Customs, Excise & \nGold (Control) Appellate Tribunal, New Delhi (hereinafter \nreferred to as the \"tribunal\") inter-alia on the ground that the \nsaid compound (kimam) was neither chewing tobacco nor \npreparations for chewing tobacco; they were not capable of \nbeing used as such and could be used only after dilution; their \nmanufacturing formula was secret and the said compound \n(kimam) was not sold in the market but it was sent to the \nassessees’ own factories at 68/2, Okhla Industrial Estate, Phase-\nII, New Delhi, Noida (UP) and Barotiwala (HP). The order of \nthe commissioner was also challenged on the ground that the \nassessee was under a bonafide impression that no duty was \nleviable on the compound (kimam); the full quantity of the \ncompound (kimam) manufactured at 96, Okhla Industrial \nEstate, Phase-III, New Delhi / E-1, Maharani Bagh, New Delhi \nwas used captively and, therefore, proforma credit / modvat \ncredit was available to the assessee and, therefore, there was no \nintention to evade payment of duty. That, the assessee was \nentitled to exemption under notification no.121/94-CE dated \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 3 of 8 \n11.8.1994 even though the assessee had not complied with the \nprocedure under chapter-X.\n After hearing both the sides, the tribunal upheld the \ncommissioner’s order dated 28.4.1998 with respect to : (a) the \nexcisability of the goods in dispute and the classification \nthereof under sub-heading 2404.49/2404.40; (b) the rationale \nfor invoking the extended period of time under proviso to \nsection 11A; and (c) inadmissibility of proforma credit / modvat \ncredit. However, as regards applicability of notification \nno.121/94, the tribunal observed that though the assessee had \nnot followed the chapter-X procedure, if substantial compliance \nwas shown regarding receipt and utilization of the input \nmaterial then the rigours of chapter-X procedure could be \ndiluted in the interest of the natural justice. The tribunal noted \nthat the commissioner had not recorded any finding in his order \nto the extent of the compliance of the conditions mentioned in \nthe notification no.121/94. Hence, the tribunal remanded the \ncase back to the commissioner for re-examination of the limited \nquestion of applicability of the said notification no.121/94. The \ntribunal also directed the commissioner to give to the assessee \nan opportunity to present their case and reconsider the quantum \nof penalty, fine, interest etc. in the light of his findings as to the \napplicability of the notification no.121/94.\n Being aggrieved by the impugned decision of the tribunal \ndated 1.10.1999, the assessee has come to this Court by way of \ncivil appeals under section 35L(b) of the 1944 Act.\n On the question of excisability, Mr. V. Lakshmikumaran, \nlearned counsel appearing on behalf of the assessee submitted \nthat the compound (kimam) which emerged on account of \nblending of sada kimam (raw-material) with spices, saffron, \nperfumes, menthol etc. had no use as such; it had no market; it \nwas highly concentrated; that it was an intermediate product \ncaptively consumed in the three factories of the assessee at \nOkhla Industrial Estate, Phase-II, Noida (UP) and at Barotiwala \n(HP); that, the blending was based on a trade secret and that the \nsaid compound was neither a chewing tobacco nor a preparation \nthereof. It was further submitted that the said compound \n(kimam) was not akin to Lucknowi kimam; that the components \nthereof differed; that Lucknowi kimam was edible whereas the \ncompound in question was not edible and, therefore, the same \nwas not excisable. It was urged that though the assessee had \nbought Lucknowi kimam from the above traders the ratio of \nLucknowi kimam in the final product, which contained tobacco \nleaves/flakes, was 1:1 whereas the ratio of the compound in \nquestion in the final product was 1:5. According to the learned \ncounsel, the ability of the manufacturer to prepare a compound \n(kimam) and utilize the same for his own purpose would not \nmake the said compound (kimam) a marketable commodity as \nthe preparation was exclusive for the assessees’ own use as an \nintermediate product. In the circumstances, it was urged that \nthe said compound (kimam) was neither a chewing tobacco nor \na preparation containing chewing tobacco and, therefore, it was \nneither marketable nor excisable.\n On the rationale for invoking extended period, learned \ncounsel submitted that the assessee was under a bonafide \nimpression that the compound (kimam) was not excisable; the \nfull quantity of the compound (kimam) was used captively and, \ntherefore, proforma / modvat credit was available and, \ntherefore, there was no intent to evade payment of duty. In this \nconnection, it was submitted that prior to 1.3.1994, branded \nchewing tobacco including preparations therefrom came under \n2404.41 and were made liable to duty whereas unbranded \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 4 of 8 \nproducts falling under 2404.49 were chargeable to nil rate. \nHowever, after 1.3.1994, the nil rate on unbranded products \nwas given a go by and consequently, the unbranded items \nfalling under 2404.49 attracted duty and duty was again \nrequired to be paid on the branded item under 2404.41 which \ncreated an anomaly. Therefore, on and from 8.3.1994, the \nbenefit of proforma credit was made available for the duty paid \non the unbranded item, which was to be set-off against the \npayment of duty on the branded item. Learned counsel, \ntherefore, submitted that the history of levy, exemption and \nbenefit of modvat credit during the period 1.3.1994 up to \n23.7.1996 indicated that the Government did not intend to \ncollect duty on the unbranded item. Learned counsel submitted \nthat w.e.f. 23.7.1996, chewing tobacco and preparations \ncontaining chewing tobacco, whether branded or unbranded, \nstood classified under sub-heading 2404.40 and modvat credit \nwas also extended to the unbranded items. In the \ncircumstances, learned counsel submitted that though the \nassessee was entitled to the benefit of proforma / modvat credits \nas well as to the benefit of exemption vide notification \nno.121/94 dated 11.8.1994, the assessee did not avail of such \ncredit and, therefore, there was no intention to evade payment \nof duty, particularly when the assessee had paid much higher \nduty on the branded item, namely, Tulsi Zafrani Zarda, \nmanufactured in the above three licensed units of the assessee at \nOkhla Industrial Estate, Phase-II, New Delhi, Noida (UP) and \nBarotiwala (HP).\n Mr. A. Subba Rao, learned counsel appearing on behalf \nof the department, on the other hand, submitted that the \ncompound (kimam) which emerged on account of blending \nwas identifiable, transportable and purchasable in the market; \nthat, in fact it was captively consumed in the manufacture of \nchewing tobacco; that merely because the assessee had refused \nto sell the product, it was not open to the assessee to say that \nthere was no market and that the item was not marketable. \nLearned counsel submitted that if such an argument was to be \naccepted, it would be open to all producers of monopoly \nproducts to contend that their item was not marketable since \nthey have refused to sell the same in the market. Learned \ncounsel further submitted that the compound in question was \nnot a by-product. \n On the question of limitation, learned counsel submitted \non behalf of the department that the assessee had suppressed the \nfollowing facts from the department. The assessee had \nmanufacturing units at 96, Okhla Industrial Estate, Phase-III, \nNew Delhi / E-1, Maharani Bagh, New Delhi, which fact was \nnot disclosed to the department. They had manufactured and \ncleared the impugned goods without informing the department \nand without payment of central excise duty. Further, the \nassessee had not obtained registration for their above units at \n96, Okhla Industrial Estate, Phase-III, New Delhi / E-1, \nMaharani Bagh, New Delhi. That, they have not filed \ndeclarations / returns required under the said 1944 Act and the \nrules framed thereunder. Learned counsel further submitted \nthat in the original hand-written challans, the compound in \nquestion was indicated by the word \"balties\" whereas in the \ncomputerized challans, the word \"balti\" was replaced by \n\"perfumed mixture + kimam poly bags\". In this connection, it \nwas submitted that the assessee was fully aware that if they had \nused the word \"compound / additive mixture\", it would have \nindicated \"manufacture\". That, to mislead the department, the \nassessee had changed the word \"balti\" and had replaced it by \nthe words \"perfumed mixture + kimam poly bags\" to show that \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 5 of 8 \nperfumed mixture and kimam were dispatched in separate \npackings from the factory. According to the learned counsel, \nthe entire exercise was to conceal the activity of manufacture \nand to evade payment of duty. Further, the assessee had failed \nto maintain statutory accounts for the manufacture of the \ncompound at 96, Okhla Industrial Estate, Phase-III, New Delhi/ \nE-1, Maharani Bagh, New Delhi. They have also not \nmaintained records of clearances from the above two unlicensed \nunits. That, all these circumstances constituted evidence of \nsuppression and, therefore, the department was right in \ninvoking the extended period of limitation. \n Learned counsel further submitted that the entire \nadjudication was regarding two issues, namely, excisability of \nthe impugned compound and the clandestine manufacture and \nclearance of the compound without payment of duty from 96, \nOkhla Industrial Estate, Phase-III, New Delhi / E-1, Maharani \nBagh, New Delhi units; that, despite opportunity, the assessee \nhad failed to explain the reasons for not registering the above \ntwo units at 96, Okhla Industrial Estate, Phase-III, New Delhi \nand E-1, Maharani Bagh, New Delhi, particularly when they \nwere in the trade buying similar compounds (kimam) from \nother traders who had licensed units.\n In these civil appeals, four issues, namely, excisability \nand classification of the compound, quantum of duty \nconfirmed, rationale for invoking the extended period of \nlimitation, and inadmissibility of proforma and modvat credits, \narise for determination.\n At the outset, we may clarify that the investigations by \nthe department were focussed on excisability and manufacture \nand clearance of the said \"compound\" without payment of duty \nfrom 96, Okhla Industrial Estate, Phase-III, New Delhi / E-1, \nMaharani Bagh, New Delhi.\nEXCISABILITY & CLASSIFICATION:\n The main contention advanced on behalf of the assessee \nherein was that the compound (kimam) was neither a chewing \ntobacco nor a preparation for chewing tobacco under chapter \nsub-heading 2404.49 prior to 23.7.1996 and under 2404.40 \nw.e.f. 23.7.1996; it was neither edible nor consumable; it was \nmade by the assessee from a secret formula and that the entire \nproduction was captively consumed by their three factories at \nOkhla Industrial Estate, Phase-II, New Delhi, Noida (UP) and \nBarotiwala (HP).\n We do not find merit in the above submissions. \nMarketability is an attribute of manufacture. It is an essential \ncriteria for charging duty. Identity of the product and \nmarketability are the twin aspects to decide chargeability. \nDutiability of the product depends on whether the product is \nknown to the market. The test of marketability is that the \nproduct which is made liable to duty must be marketable in the \ncondition in which it emerges. Marketable means saleable. \nThe test of classification is, how are the goods known in the \nmarket. These tests have been laid down by this Court in a \nnumber of judgments including Moti Laminates Pvt. Ltd. v. \nCollector of Central Excise, Ahmedabad [1995 (76) ELT 241]; \nUnion of India v. Delhi Cloth & General Mills Co. Ltd. [1997 \n(92) ELT 315]; Cadila Laboratories Pvt. Ltd. v. Commissioner \nof Central Excise, Vadodara [2003 (152) ELT 262].\n \n Applying the above tests to the facts of this case, we find \nthat sada kimam was bought by the assessee as a raw material \nwhich was then blended with saffron, perfumes, menthol etc. to \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 6 of 8 \nform a compound which was then packed in \"balties\" and \ncleared to the above three licensed units at Okhla Industrial \nEstate, Phase-II, New Delhi, Noida (UP) and Barotiwala (HP), \nwhere Tulsi Zafrani Zarda was manufactured. That, the \nassessee used to buy a similar compound (Lucknowi kimam) \nfrom the market from time to time and used in the manufacture \nof their final product. That, the compound (kimam) prepared \nby the assessee at 96, Okhla Industrial Estate, Phase-III, New \nDelhi and at E-1, Maharani Bagh, New Delhi, in the highly \nconcentrated form, was cleared therefrom and taken to the \nabove three licensed factories where it was diluted and used in \nthe manufacture of Tulsi Zafrani Zarda. In their reply to the \nshow-cause notice, the assessee admitted that the said \n\"compound\" was not capable of being used for any purpose, \nother than for manufacture of branded chewing tobacco \n(underline supplied by us). This statement of the assessee in \nreply to the show-cause notice establishes that the said \ncompound (kimam) was not edible, it was not capable of \nconsumption as such, however, it was used as preparation in the \nmanufacture of Tulsi Zafrani Zarda which was a branded \nchewing tobacco manufactured in the licensed factories of the \nassessee at Okhla Industrial Estate, Phase-II, New Delhi, Noida \n(UP) and Barotiwala (HP). Further, from time to time, the \nassessee herein bought from the market a similar compound \n(Lucknowi kimam) and used it in the manufacture of the final \nproduct which indicated that on blending of sada kimam with \nsaffron, spices, menthol etc., the compound in question \n(kimam) which emerged was a distinct, identifiable product, \nknown to the market as kimam. Hence, we do not find any \ninfirmity in the impugned judgment of the tribunal which has \nheld that the said compound (kimam) was marketable and \nclassifiable as chewing tobacco or a preparation for chewing \ntobacco under chapter sub-heading 2404.49/2404.40.\nINVOCATION OF THE EXTENDED PERIOD OF \nLIMITATION AND ADMISSIBILITY OF PROFORMA & \nMODVAT CREDITS: \n At the outset, it may be stated that the investigation in \nthis case was focussed on the excisability, manufacture and \nclearance of the compound (kimam) without payment of duty \nfrom the said two unlicensed units at 96, Okhla Industrial \nEstate, Phase-III, New Delhi and E-1, Maharani Bagh, New \nDelhi. That, the admissibility of the proforma / modvat credits, \nwhich could have warranted an enquiry at the end of the above \nthree factories at Okhla Industrial Estate, Phase-II, New Delhi, \nNoida (UP) and Barotiwala (HP) as to receipt and utilization of \nthe said compound, was not the subject of investigation. \nTherefore, the show-cause notice was confined to demand for \nduty on the goods manufactured and cleared from the two \nunlicensed and unregistered units at 96, Okhla Industrial Estate, \nPhase-III, New Delhi and E-1, Maharani Bagh, New Delhi.\n As stated above, assessee was in the business of \nmanufacturing Tulsi Zafrani Zarda for couple of years. It used \nto buy similar compounds from the market from time to time. \nThat, other traders, namely, M/s Globe Traders and M/s Laxmi \nFragrances Pvt. Ltd. used to manufacture compounds similar to \nthe compound manufactured by the assessee; that they had their \nunits duly licensed / registered with the excise department; that \nthey had maintained their books and documents in accordance \nwith the rules under the said 1944 Act; and that they paid duty \non clearances of their compound. On the other hand, the \nassessee carried on their business of manufacturing the said \ncompound without disclosing the existence of their units; they \n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 7 of 8 \ndid not get their units licensed / registered; they did not \nmaintain any records under the excise law; that they \nclandestinely manufactured their compound without informing \nthe department; and in the circumstances, the department was \nright in invoking the extended period of limitation.\n It was urged that the assessee was under a bonafide \nimpression that no duty was leviable on the goods; the full \nquantity of disputed goods was used captively and, therefore, \nproforma credit / modvat credit was available in respect thereof \nand, therefore, there was no intent to evade payment of duty. In \nsupport of the aforestated submissions, it was urged that \nsuppression or breach of rules by itself would not amount to \nintention to evade; that some positive act of deliberate \nsuppression or breach of rules was required to be shown by the \ndepartment; that, if the assessee showed that credit available to \nit was equal to the demand then there may not be the case of \nintention to evade payment of duty. In this connection, reliance \nwas also placed on the judgments of this Court in Amco \nBatteries Ltd. v. Collector of Central Excise, Bangalore \nreported in 2003 (153) ELT 7; Padmini Products v. Collector \nof Central Excise reported in 1989 (43) ELT 195; and Formica \nIndia Division v. Collector of Central Excise reported in 1995 \n(77) ELT 511. \n We do not find merit in the above contentions. In this \nmatter, we are concerned with the application of the above \njudgments to the facts of this case. The words \"wilfulness\" and \n\"intent\" in section 11A are expressions of mental state at the \ntime of manufacture and clearance of the goods. The situs of \nthe levy of central excise is on manufacture. Pricing and value \nof clearances are matters specially within the knowledge of the \nassessee. As stated above, the assessee herein was in the \nbusiness of manufacture of chewing tobacco and its \npreparations for last couple of years. In the course of business, \nthe assessee had dealt with similarly situated traders. It was \nfully aware that those traders who produced similar compounds \nhad their units licensed or registered and yet the assessee herein \ndid not take steps to get the above two units, in which the \nimpugned compound (kimam) was manufactured, registered or \nlicensed. As stated above, it has been buying a similar kimam \nfrom various traders. These circumstances constituted evidence \nof suppression brought on record by the department in answer \nto which it was contended on behalf of the assessee that they \nwere under a bonafide impression that the compound was not \nexcisable and that the benefit of proforma and modvat credit \ntogether with the benefit of exemption under notification \nno.121/94 dated 11.8.1994 was substantially equal to the \ndemand for duty herein and, therefore, there was no intention to \nevade payment of duty.\n We do not find any merit in these submissions. As stated \nabove, the adjudication in this case was confined to the question \nof excisability and concealment of the existence of two units in \nwhich the compound (kimam) was manufactured. No \nexplanation has been given by the assessee for not disclosing \nthe affairs of these units, particularly when the assessee was in \nbusiness for couple of years and when the assessee had been \ndealing with other traders who operated from licensed factories. \nIt was for the assessee to explain the reasons for not getting the \nunits registered or licensed. It was for the assessee to explain \nits failure to maintain the records under the 1944 Act and rules \nthereunder. In each of the above decisions, we find that there \nwas substantial compliance of the rules under the said Act. In \neach of the decisions the findings indicate technical non-\n\nhttp://JUDIS.NIC.IN \nSUPREME COURT OF INDIA\nPage 8 of 8 \ncompliance and not total non-compliance of the rules. It was \nfor the assessee to explain the basis of its alleged bonafide \nimpression. In this connection, no evidence was put before the \ncommissioner about receipt and utilization of the compound in \nthe manufacture of Tulsi Zafrani Zarda. No evidence was led to \nshow that the amount of proforma / modvat credits was equal to \nthe duty demanded, although it was urged that after 3/94, the \nliability to duty on inputs stood shifted to the final product. \n Modvat is basically a duty collecting procedure which \nprovides relief to the manufacturer on the duty element borne \nby him in respect of the inputs used by him. The relief is given \nunder the modvat scheme on the actual payment of duty on the \ninput. On such payment, the assessee gets a right to claim \nadjustment/set-off against the duty on the final product. The \nquestion of duty adjustment/set-off against duty on the final \nproduct was not in issue. In any event, no record on credit \nentitlement was produced. A right to claim proforma/modvat \ncredit against duty on final product was different from the \ndefence of bonafides in a case where circumstances mentioned \nin the proviso to section 11A(1) stands proved by the \ndepartment for invoking larger period of limitation. The burden \nto prove the defence of bonafides was on the assessee and the \nassessee in this case has failed to prove its bonafides. Under \nmodvat, excisable finished products made out of duty-paid \ninputs are given relief of excise duty to the extent of duty paid \non inputs. In the circumstances, we are satisfied that the \ndepartment was justified in invoking the extended period of \nlimitation under the proviso to section 11A(1). \n On the applicability of the notification no.121/94 dated \n11.8.1994, the tribunal remanded the case back to the \ncommissioner for re-examination of the limited question of its \napplicability. The tribunal also directed the commissioner to \nreconsider the quantum of penalty, fine etc. in the light of its \nfindings on the applicability of the said notification. We do not \nwish to express any opinion on the applicability of the \nnotification dated 11.8.1994. Suffice it to state, that, on the \nissue of excisability and clandestine manufacture and removal \nof the compound (kimam) from the two unlicensed/ \nunregistered units at 96, Okhla Industrial Estate, Phase-III, New \nDelhi / E-1, Maharani Bagh, New Delhi, we do not find any \ninfirmity in the impugned judgment.\n Accordingly, these civil appeals filed by the assessees are \ndismissed with no order as to costs.\n"