TMI Blog2011 (3) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Polycone Paper Ltd. v. CC, (1993 -TMI - 82922 - CEGAT, NEW DELHI) had held that “if the appeal involved the question of correct classification of goods on which a ruling would have to be given, it would not in the interest of justice or conducive to a proper disposal, if the appellants are prevented from raising the new ground” - Thus the case is disposed of by way of remand. - E/3053/2003 - A/130/2011-WZB/C-II/(EB) - Dated:- 1-3-2011 - S/Shri M.V. Ravindran, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri H.B. Negi, SDR, for the Appellant. Shri Prakash Shah, Advocate, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. This appeal is filed by the Commissioner of Central Excise, Mumbai-V a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of rectangular frames on which nylon fabric screen is attached. This nylon screen has its pores blocked with a special paint and the design to be printed on the fabric is etched on this painted fabrics so as to remove the paint from the pores of the nylon fabrics as per the desired design. Mostly these printing screen are got manufactured on job work basis by experts outside the unit. Whenever printing has to be done, two workers on either side of the table hold such screens in which adhesive paste is poured manually. This adhesive paste is printed on the fabric with the help of flat brush by moving the brush from one end of the frame to the other end lengthwise. In other words, first the fabric gets the desired design printed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued as amounting to manufacture with the aid of power. He further observed that the fabrics had already been manufactured prior to the removal of flock and the subsequent action of removal of extra clocks by itself is not a process of manufacture. Accordingly, he upheld the order of the lower appellate authority and rejected the departmental appeal. 5. In the departmental appeal the grounds urged are that the process of picking up extra flocks with the help of machine is a necessary and essential process in order to bring the fabrics into finished and marketable condition. If the said process is not carried on, the fabrics subjected to flock printing will not have the effect of velvet touch for which it is processed and hence, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the manufacture Nil of which no process is ordinarily carried on with the aid of power Nil 5907.90 - Other 16% 7. The department has relied on the judgment of the Hon ble Apex Court in the case of Mathania Fabrics v. CCE, Jaipur, 2008 (221) E.L.T. 481 (S.C.) and Rajasthan State Chemical Works, 1991 (55) E.L.T. 444 (S.C.) in support of their contention that the activity has to be treated as manufacture with the aid of power. In these cases, the Hon ble Apex Court has held that the process in manufacture or in relation to the manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations. If in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted fabrics before the fabrics comes out of the manufacturing process. Excess flock has to be removed so that the products attain the required quality and becomes marketable. In view of this position the process undertaken in the instant case has to be considered as a manufacturing process undertaken with the aid of power. To this extent the findings of the lower adjudicating and appellate authority are not in accordance with law and the decisions of the Hon ble Apex Court in the Rajasthan State Chemical Works and Mathania Fabrics case cited supra. 9. The Ld. Advocate for the assessee has put forth a new submission. He submits that according to Note 5(c) to Chapter 59, Heading No. 59.07 does not apply to fabrics partially covered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty can be alleged on the assessee, in view of the fact that both the lower appellate authority and the adjudicating authority has also come to the conclusion that the flock printed fabrics has been manufactured without the aid of power. Therefore, the assessee could have entertained reasonable view that their activity was one of manufacture without the aid of power . In view of this position, the demand is also barred on account of time-limit. The Ld. DR submits that this is a new plea taken before the Tribunal. 10. We have carefully considered the submissions made by the Ld. Advocate. From the records, it would appear that the flock printed fabrics manufactured in this case bears a design. If that be so, then the product will not merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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