TMI Blog2002 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured. This, for example, the carton gift box contained 100 gm baby powder, 25 gm of baby cream, one cake of baby soap, one bib and booklet; a shrink gift box contained a jar of baby powder, a cake of soap, baby brush and a baby comb. All these sets were packed securely with the base of tray made of high impact polystyrene. Duty had been discharged on each of these items that comprised these boxes. The primary question for consideration in this appeal is whether by being packed in the manner which we have described, and sold there has emerged a new and distinct excisable duty, which is liable to pay duty. In the order impugned in the appeal, the Commissioner has found this to be the case demanded the duty so possible and imposed penalty Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spur of the moment. We do not find anything sinister or significant on the fact that the appellant planned its activity and carried it out systematically. 3.When the Commissioner says that the process undertaken by the appellant amounted to manufacture both under Section 2(f) of the Act and also in terms of the notes to Chapters 33 and 34 containing the deeming provisions of manufacture, there is considerable tautology. If the activity that the appellant undertook amounted to manufacture under Section 2(f) of the Act, there was no need for him to rely upon the notes to Chapters 33 and 34. It is only because certain activities would not be manufactured within the meaning of 2(f) of the Act that it would be necessary to deem them to be manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powder into tablets, labelling or relabelling of containers intended for consumers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the products marketable to the consumer, shall be construed as 'manufacture'." Note 6 to Chapter 34 reads thus, "In relation to products of this Chapter, labelling or relabelling of containers and repacking from bulk packs to retail packs on the adoption of any other treatment to render the product marketable to the consumer, shall amount to 'manufacture'." 5.These notes, as can be seen, are almost identically worded. The only difference between the two is that note 4 to Chapter 34 includes in the deeming of manufacture conversion of powder into tablets which is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the product, which was otherwise not marketable is now rendered marketable. If the product was already marketable, any amount of treatment to enhance its marketability would not amount to manufacture within the meaning of this note. That object of the note is also clear from the tact that the process which is specified in it as manufacture conversion of powder into tablets, labelling, or re-labelling of containers intended for consumers, repacking bulk drugs to retail packs are all activities which result in the products being made marketable to the individual consumers." 6 It will therefore be clear that for either of these notes to apply, the product in question must be subjected to one of the processes specified in that note and that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual items. There is therefore an addition to their capability for marketability as a result of this pack and therefore the requirement of the notes is satisfied. 8. This argument seems attractive but will not stand scrutiny. We agree that it is possible that the gift packs would be purchased by people who would not purchase any or all of the individual items comprising the gift pack. This however does not mean that the items which were earlier not marketable have now become marketable as a result of this packing. In their individual capacity they were earlier marketed and continue to be marketable. By their being put in a pack the marketability of the individual items does not increase. The fact that a new class of customers buy these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t indicated that the goods would be shrink wrapped. We do not see what significant details that the appellant has left out. Short of enclosing a sample of the product, it had furnished as complete information as we can conceive of. The appellant failed to intimate the department of its putting together the "Kids' Soap with Pencil Box." Having regard to the fact that the appellant had intimated its intention to pack into a set all the goods except one, we think that its failure to intimate one item would thus have to be reconsidered not a deliberate omission and was inadvertent omission and there was no intention to evade duty having regard to the fact that all other products were declared. The appeal would therefore also succeed on limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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