1998 (5) TMI 74 - AT - Central Excise

Summary

Issues:
1. Whether pulverizing LDPE/HDPE granules to obtain moulding powder amounts to manufactureRs.
2. Is the extended period of limitation applicable to the departmentRs.
3. Are the appellants entitled to Modvat credit against duty paid on final productsRs.

Issue 1 - Manufacture of Moulding Powder:
The appellants did not contest that pulverizing plastic granules into plastic moulding powder amounts to manufacture as per Chapter 39 of the Central Excise Tariff Act, 1985. The Tribunal held that the process qualifies as manufacture, and the moulding powder is classified under sub-heading 3901.10. The Tribunal referred to previous decisions supporting this view.

Issue 2 - Extended Period of Limitation:
The department demanded duty on moulding powder for a specific period, but the appellants argued that the extended period of limitation does not apply. The Tribunal agreed, noting that the department was aware of the pulverization activity and no fraud or suppression of facts occurred. The demand beyond the normal limitation period was deemed time-barred.

Issue 3 - Modvat Credit Eligibility:
Regarding Modvat credit, the matter was remitted to the Commissioner for further evaluation based on Tribunal decisions. The appellants were directed to provide necessary information for re-determining duty and Modvat eligibility. The Tribunal emphasized that if the raw material was LDPE granules or powder, and the final products were plastic containers, Modvat credit should be granted if compliance was demonstrated.

Additional Observations by Vice President:
The Vice President highlighted the need to consider whether a new marketable commodity emerges for excisability, which was not a focus in previous cases. The Vice President supported the Tribunal's decision on the lack of time-bar due to the department's awareness of the appellants' activities. Additionally, the Vice President emphasized the appellants' entitlement to Modvat credit if compliance was proven.

In conclusion, the Tribunal upheld that pulverizing plastic granules into moulding powder constitutes manufacture, rejected the extended period of limitation for duty demand, and referred the Modvat credit issue for further evaluation. The Vice President supported these decisions, emphasizing the importance of compliance and the department's awareness of the appellants' activities in determining the case outcome.