TMI Blog1987 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ing paper. (v) Waxed kraft packing paper (vi) Hessian lined kraft paper The respondent purchases kraft paper from the open market and also other agents as bitumen, polythene, jute fibre and wax and thereafter combines these agents with kraft paper in his factory. Till October 30, 1980 the respondent classified his products under Item 17(2) of the Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act'), and paid duty accordingly. It is the claim of the respondent that on October 30, 1980 the respondent discovered that none of the products manufactured by him were liable to payment of duty as the products did not fall within the expression "manufacture" within Section 2(f) of the Act. The respondent the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a different name and different use. The learned Judge in support of the claim relied upon the decisions of Madras High Court and Andhra Pradesh High Court, where identical question was considered. As a consequential relief, the learned Judge directed that the Department should refund the excise duty levied and recovered from the respondents as a result of the order dated February 16, 1981 passed by the Assistant Collector. The decision of the learned Single Judge is under challenge in this appeal. 3. Shri Lokur, learned counsel appearing on behalf of the appellants, submitted that the conclusion of the learned Single Judge that the process carried on by the respondents cannot be treated or considered as a manufacture of a new commodity wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or is not visiting the market every day to find out how the product is known in the market or even otherwise the Assistant Collector has not examined himself as a witness in the proceedings. In our judgment, the conclusion of the learned Single Judge that there was no material whatsoever before the Assistant Collector and no material was disclosed in the affidavit filed before the learned Single Judge is correct and deserves acceptance. 4. Shri Lokur submitted with reference to the decision of the Supreme Court reported in 1985 (20) E.L.T. 179 (S.C.) = 1985 (3) S.C. Cases 314 (Empire Industries Limited and ors. v. Union of India and others) that the process undertaken by the respondents amounts to manufacture. The Assistant Collector h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents did not undertake manufacture of different products with different characteristics and use. The reliance by the learned Single Judge on the decision of the Madras High Court reported in 1980 E.L.T. 579 (Kwality Coated Products v. Government of India) and of the Andhra Pradesh High Court reported in 1985 (20) E.L.T. 314 (A.P.) = 1984 Excise and Customs Reporter 2635 (Standard Packings v. Union of India) is appropriate. 5. Shri Lokur then submitted that Item 17(2) of the Schedule to the Act clearly provides that forty per cent ad valorem duty shall be levied on all kinds of paper, including paper which have been subjected to various treatments such as coating, impregnating, corrugation, creeping etc. It was urged that as the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kraft paper from the open market. The process carried out by the respondents on such kraft paper does not amount to manufacture, and therefore, Item 17(2) is not attracted to the work undertaken by the respondents. In our judgment, the view taken by the learned Single Judge does not suffer from any infirmity as to warrant interference in this appeal. 6. Shri Sathe urged that the learned Single Judge directed the Department to make refund of duty collected as a result of the order dated February 16, 1981 but did not give any directions in respect of duty paid prior to that date. It is open for the respondents to approach the Department by making requisite refund application and as the duty recovery was without any authority of law, the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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