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TMI Blog2008 (9) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... on such deposit, the penalty and the interest were to remain stayed until further orders. 2. The petitioner company claims to have carried on business of packing and/or repacking detergent powder from bulk packs to smaller packs upon purchase from other manufacturers. It is stated that the nature and character of the detergent powder remained the same. 3. Initially, the petitioner had no Excise Registration Certificate. Subsequently, however, an Excise Registration Certificate No. 160310/97/03 dated 1-4-1997 was issued to the petitioner company. 4. According to the petitioners, on or about 6th October, 1995, the petitioner company executed a memorandum of understanding with the Respondent No. 6 for supply of detergent powd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that is, the respondent No. 6. 9. The challans which accompanied the detergent powder, did not, however, mention any brand name. The detergent/washing powder was described as 'blue', 'white' and 'yellow'. 10. Reliance has been placed on a Circular No. 342/58/97-C.E., dated 8th October, 1997 issued by the Government stating that whether an operation amounted to repacking or not, was a question of fact but clarifying that simple transfer of materials from one container to another, might not be categorized 'manufacture'. 11. On 18th June, 1997, the factory-cum-godown of the petitioner company located at 21A, Shakespeare Sarani, Kolkata - 700 017 and at Kumrakhali, Narendrapur, South 24 Parganas were searched and documents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "I have therefore, no doubt in my mind that M/s. OMPL's claim in their reply to S.C. Notice that they supplied unbranded washing/detergent powder to M/s. PDL is entirely untrue and is liable to the rejected as afterthought and it is obvious that they evaded CE duly due on the subject goods suppressing materials facts pertaining production & removed thereof from the CE department and the proposed demand of duty so evaded is wholly justified and metits confirmation. With regard to M/s. OMPL's claim of modvat credit, I find that this cannot be accepted as they have not all followed the requisite procedures which are substantial in nature and neither they have adduced any documentary evidence in support of such claim." 17. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Commissioner to decide the case and also on Note 6 of Chapter 34 in terms whereof packing or repacking of bulk packs to retail packs on any other treatment to render the product marketable to the consumer would amount to manufacture. 19. Against the aforesaid order dated 30th July, 2004 of the Commissioner of Central Excise, the petitioner company preferred an appeal before the CESTAT which was numbered Appeal No. ESM-16/05 and also made an application for stay numbered 30/05. By the order impugned, the CESTAT directed as follows : "I find that the Chapter Note referred to above by the learned S.D.R., makes it evidently clear that the activities of labelling or relabelling of containers and repacking from bulk packs to retail pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Supreme Court : (1) Mehsana District Co-operative Milk (P.U.) Ltd. v. Union of India reported in 2003 (154) E.L.T. 347 (S.C.). (2) Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana reported in AIR 1991 SC 2222 = 1991 (55) E.L.T. 444 (S.C.). (3) Union of India v. J.G. Glass Industries Ltd. reported in AIR 1998 SC 839 = 1998 (97) E.L.T. 5 (S.C.). 24. It is a well-established proposition of law that the requirement of pre-deposit should be waived when a strong prima facie case is made out. However, in this case, the CESTAT has, in effect, arrived at the finding that the petitioner did not have a good prima facie case. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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