TMI Blog2023 (5) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 187/83 dated 09.07.1983. Undisputedly Cotton Yarn in straight reel hank falling under heading NO. 52.03 of the Schedule to the Central Excise Tariff Act, 1985 was exempted from payment of Central Excise duty. There is also no dispute in the present case that the Appellants had cleared the cotton yarn in straight reel hank and prima facie it is found that their case is covered by the judgment of this Tribunal in the case of ARATI COTTON MILLS VERSUS COMMISSIONER OF C. EX., CALCUTTA-II [ 2000 (9) TMI 536 - CEGAT, KOLKATA] , wherein the Tribunal held The identical definition which was already in existence under Section 2(f) was considered by the Bench and it was held that conversion of one stage of yarn into another will not amount to manufacture. It is also seen that hank yarn is obtained as a result of continuous process of manufacture in which the winding of bobbin is only an intermediary process. As such we do not find any reasons to take a different view than the one taken by the Tribunal In the earlier decisions - The facts of the present case are squarely covered by the aforesaid decision of the Tribunal. The impugned order cannot be sustained and is according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity of personal hearing. On the date of hearing i.e. on 18.02.2010, the Authorized Representative of the Appellant could not reach in time due to traffic jam. He was not allowed to make his submissions and was directed to submit the written submission by 19.02.2010. The Written Submission was given but the same was not considered by the Ld. Commissioner, though the order was passed after 1 month and 10 days from the date of hearing. This order is a glaring example of arbitrariness in the decision making process. 3. The Ld. Advocate vehemently argued that the Ld. Commissioner should have restrained himself from taking up the matter since he himself had reviewed the order of the Adjudicating authority and he himself has decided the Appeal. As such it was difficult for him to take a different stand from the stand taken in the review order. It is the case of the Appellant that cotton yarn in straight reel hank falling under heading 52.03 of the Schedule to the Central Excise Tariff Act, 1985 was exempted from payment of Central Excise duty. There is no dispute in the present case that the Appellants had cleared the cotton in straight reel hank. Reel and straight reel hank are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 (130) E.L.T. 191 (Tri.-Kolkata)], wherein the Tribunal held as under:- 2. Shri H.L. Banerjee, ld. Consultant appearing for the appellant submits that the issue is covered by the earlier decision of the Tribunal in the case of CCE, Bhubaneswar v. Orissa Weavers Cooperative Spinning Mills - 1985 (21) E.L.T. 348. He submits that it has been held by the Tribunal that conversion of yarn from one stage to another stage does not amount to manufacture or removal under Rules 9 and 49 and no duty can be demanded at bobbin stage or at hank stage. He submits that the said order of the Tribunal was also followed subsequently in the case of Orissa Cotton Mills, Cuttack v. CCE, BBSR vide order No. 63 and 64/86-D. He submits that though the Commissioner (Appeals) accepts that the issue is covered but he has not followed the said decisions of the Tribunal on the ground that the said decisions were in the context of erstwhile Tariff Item whereas the period involved in the present appeal pertains to the new Central Excise Tariff Act, 1985 and as per chapter note 1 to chapter 52, conversion of any form of product under heading No. 52.53 into another form of such products shall amount to man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, duty is leviable on yarn at bobbin stage for captive use in the manufacture of reel hank in terms of Rules 9 and 49, although the latter is exempted from payment of duty. The judgment delivered by the CEGAT in the case of Orissa Cotton Mills being passed relating to the period prior to introduction of CETA, 1985 is not relevant to the impugned order-in-original, confirming the demands is legal and proper and, thus, the same does not call for interference with. Accordingly, I uphold the order-in-original and reject the appeal . 5 . A reading of the above para of Commissioner (Appeals) order shows that strong reliance has been placed by him on Chapter Note 1 of the Chapter 52 of the Central Excise Tariff Act, 1985. We find that identical definition of manufacture was there in the erstwhile Tariff Item under Section 2(f)(iv), which was referred to by the Revenue before the Tribunal in the case of Orissa Cotton Mills and in the case of Orissa Weavers Cooperative Spinning Mills relied upon by the ld. consultant. In para 5 of Orissa Weavers Judgment it was observed by the Bench as under :- 5. We have carefully considered the matter. We observe from Rule 9, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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