TMI Blog1991 (5) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed procedure and without payment of duty; (b) imposing a penalty of Rs. 30 lakhs on the appellants under Rule 173Q(1) for contravention of Rule 174 read with Section 6 of the Central Excises Salt Act, 1944 and Rules 173C, 173F, read with Rule 9(1), 173G(2) read with Rule 52A and Rule 173 6(4) read with Rule 53 and 226 of the Central Excise Rules 1944; and (c) ordering confiscation of plant and machinery etc., belonging to the appellants and used in the manufacture, production storage and removal of the offending goods under Clause (a) to sub-rule (2) of Rule 173Q and permitting redemption of the aforesaid plant and machinery on payment of a fine of Rs. 10 lakhs in lieu of confiscation within one month. 2. Briefly stated, the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated in the application that the judgment is fully applicable to the facts of the appellants case; that there is no other judgment except this one involving the facts regarding lacquering and metallising of polyester films. In view of the request in the application, the matter was re-opened and the Miscellaneous Application was heard. 4. Arguing for the appellants, Shri Willingdon Christian, their learned counsel submitted that the Collector has held in the impugned order that with effect from 1st March, 1982 when the tariff description of Item 15(A) was substantially amended, lacquered/metallised films as also those which were not lacquered or metallised were included in the tariff item and, in view of this change, lacquered/metalli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are expressly referred to. This, in our view, can make no difference if in lacquering/metallising polyester film no process of manufacture is involved because a new commercial commodity does not come into existence. This is not to say that the process of lacquering or metallising can never amount to manufacture. Whether it will amount to manufacture or not will depend upon the end-product which emerges and on whether this end-product is a distinct commercial commodity having its own separate identity and use. 5. Shri Wellingdon also submitted that the ratio of the Supreme Court judgment in Laminated Packing (P) Ltd. v. Collector of Central Excise, [1990 (49) E.L.T. 326 S.C.] was also specifically discussed in Garware s case (Supra). He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the burden of proof that a new article had come into existence was on the department and in view of the conclusion of the Bombay High Court in para 18 of the judgment, there was no scope for any doubt in the matter. 8. We have given our earnest consideration to the appeal and the submissions of both sides. The judgment of Bombay High Court in Garware s case was pronounced on 7th December, 1990 and has taken into account all the case law on the subject till the hearing of that case. The High Court has concluded that there was no material which would show that as a result of lacquering/metallising of polyester film, any new distinct commercial commodity, comes into existence having different identity or name. In view of this conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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