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2020 (3) TMI 456 - HC - Central ExciseMaintainability of appeal - appropriate forum - CENVAT credit - activity amounting to manufacture or not - activity of re-packing which is not packing in “unit containers” - activity of re-labeling with the name and without any hologram or marking while the re-labeling being done only for the logistics purpose by the assessee - treatment to the already marketable products by the assessee would amount to manufacture - filing of a Return under Rule 12 of Central Excise Rules, 2002 - disclosure of full details. Whether the present appeals which raises a question of excisability itself or not, will be appealable before the Hon'ble Supreme Court or not? HELD THAT:- The question whether the activity carried out by the Assessee amounts to "deemed manufacture" or not is the basic question involved in the present appeals. While the Tribunal decided in favour of Assessee that the activity amounts to 'manufacture', the Revenue seeks to raise a question and doubt it on that ground that the Assessee only carried out some kind of packing/ repacking or labelling of goods not amounting to the process of 'manufacture' - It is quite obvious that clause (iii) was inserted in the definition of "manufacture" in Section 2(f) of the Act by Finance Act, 2003 with effect from 01.03.2003 which clearly by a deeming fiction included in III Schedule the activities which only involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers etc. In view of such extended definition now incorporated in the Statute itself, we do not find any justification for the Revenue to raise a question on this as to whether the activity carried out by the Assessee will amount to manufacture or not. Since the question of excisability under Central Excise Act and dutiability under the Customs Act are the basic questions at the root of the matter, before deciding the questions of rate of duty and valuation of goods, which as per expanded scope of 35L of the Act, should naturally now lie before the Hon'ble Supreme Court of India. Even before the said amendment in law took place, the Division Bench of Karnataka High Court in two decisions dealing with both the enactments viz., Excise Law and Customs Law made such observations and held that such appeals are maintainable before the Hon'ble Supreme Court of India - Reliance can be placed in the case of CCE., MANGALORE VERSUS MANGALORE REFINERIES & PETROCHEMICALS LTD. [2010 (9) TMI 756 - KARNATAKA HIGH COURT]. In view of the amendment in the provisions of Section 35 L(2) akin to Section 130 of the Customs Act, we are of the clear opinion that the issues raised in the present Appeals are governed by the domain jurisdiction of Hon'ble Supreme Court of India and the present Appeals filed by Revenue, cannot be maintained before this Court. The appeals filed are therefore not maintainable and is dismissed.
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