Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2019 (4) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 1679 - AT - Central ExciseProcess amounting to manufacture or not - ‘Manganese ore is heated in a coal fired furnace till it becomes red hot; the material is quenched with water and taken out from the furnace for sun drying; it is pulverized to a fine powder and packed in bags for sale’ - extended period of limitation - HELD THAT:- It appears that even the samples of the impugned product have not been drawn and tested to confirm whether the product would be eligible to be called MnO, so that it is eligible to be classified under chapter 28 of C. Ex. Tariff Act. It is seen that revenue had simply gone by the process undertaken by the Appellant in their factory and have come to the conclusion on the basis of Wikipedia. The allegation made by revenue is of serious nature and in such a case, a commensurate homework is expected to be done by the department to substantiate their allegation - Coming to a conclusion simply on the basis of the submission of the Appellant and holding that the water which is poured on hot Manganese Ore forms the complete new product, i.e. MnO classifiable under CETH 28209000, appears to be weak. Hon. Supreme Court in the case COMMISSIONER OF C. EX., LUCKNOW VERSUS WIMCO LTD. [2007 (10) TMI 3 - SUPREME COURT OF INDIA] observed that merely because there is a tariff entry it does not become excisable unless manufacture is involved. Therefore in this case the department requires to prove that there is an act of manufacture and as a result of that a new product has come into existence. Therefore, the issue requires to go back to the adjudicating authority to go into the issue in the entirety and to come to a conclusion as to whether the process undertaken by the Appellants are not normal to metallurgy so as to exclude the impugned item from the scope of chapter 26 and also to ascertain whether as a result of such process a new product technically and commercially identifiable and usable product which is entirely different from the ore has emerged. If need be adjudicating authority shall obtain opinion of an expert in the field. Time Limitation - HELD THAT:- Having clarified in with manner issuing a Supreme Court Notice dated 28.01.2010 alleging suppression of fact is not acceptable. The department sought to invoke extended period stating that the appellants suppressed the fact that they are adding an inert chemical i.e. H2O. This is a long drawn and spurious argument, hence not acceptable we hold that extendable period is not invocable in this case. Appeal allowed by way of remand.
|