TMI Blog2011 (4) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... market which is established by the invoices placed on record, and the fact stands corroborated by the statement of the officers of the appellant company. All the ingredients of the marketability aspect of the product in question stand fully satisfied and established. Meaning and scope of the term 'Consumer' - Charter Note 11 to Chapter 29 - held that:- Merely because the product in question is not being bought and sold in the market or that there is no activity of repacking from the bulk packs to the retail packs, the product cannot escape the applicability of the latter portion of the Note 11 of the said Chapter. It is not only the activity of mixing of different vitamins but the collection thereof in containers and labeling with specific name followed by the product being stored in the shelf and used as and when required by the appellants and thus is captively consumed and at the same time. The word 'consumer' in the said Note 11 of Chapter 29 of the Central Excise Tariff Act, 1985 means any consumer including an industrial consumer and the said word is not related exclusively to retail consumer. The expression “any other treatment” is not confined to treatment in the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29-9-2003 After remand Duty : 73,61,677 Penalty : 73,61,677 E/2820/05 OIO dated 10-12-2004 AND Duty : 42,60,312 Penalty : OIO dated 16-5-2005 15,00,000 3. e/550/05 27-4-2004 1-4-2003 to 31-12-2003 OIO dated 24-6-2004 AND OIA dated 26-10-2004 Duty : 37,38,868 Penalty : 15,00,000 4. E/4370/04 2-9-2003 1-10-2002 to 31-3-2003 OIO dated 31-1-2003 OIA dated 29-4-2004 Duty : 21,79,114 Penalty : 10,00,000 After remand E/3522/05 OIO dated 18-3-2005 AND Duty : 5,13,074 Penalty : 1,25,000 OIA dated 4-7-2005 5. E/1828-1831/05 27-2-2002 22-3-2002 Seizure on 1-9-2001 1-3-1997 to 31-1-2002 OIO dated 6-7-2004 (seizure) AND OIA dated 6-4-2004 Duty : 68,977 Duty : 41,99,645 Duty : 11,51,568 26-2-2003 1-2-2002 to 31-12-2002 OIA dated 21-2-2005 Duty : 16,37,418 + Penalties R. Fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ottles. These intermixture of vitamins are used in the manufacture of infant foods. 6. As regards the earlier order of the Tribunal the Hon ble Supreme Court has observed that the same was cryptic and did not deal with the points which were specifically raised by the assessee. While formulating the questions for determination as quoted above, the Hon ble Apex Court had held thus : As stated above, the vitamins A, Vitamin D, Vitamin E etc. are undoubtedly bought out items. They were undoubtedly marketable. These vitamins were converted into recipe which according to the assessee was not marketable, therefore, Note 11 is not applicable. According to the asseseee, no evidence has been led by the Department to show that the said recipe is marketable. On this aspect also, there is no finding of the Tribunal . 7. The learned Advocate for the appellants submitted that neither the show cause notice had alleged nor the impugned order has given any finding that the process undertaken by the assessee would amount to manufacture in terms of Clause 2(f)(i). According to the appellants, the process of mere mixing the vitamins would not be a manufacture and could not be subjected to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly discloses the activity of mixing of the individual vitamins in proper proportions in such a manner that the resultant product is complete intermix of all those vitamins as desired by the assessee. The individual products which are mixed are specifically identified and known individually by its character and components and are individually known by particular name of vitamin such as vitamin A, vitamin D, vitamin E etc. and the product which emerges after the said process is known as the intermixture of vitamins or vitamin mix or mixture of vitamins. The intermixtures of vitamins do not have the same name such as that of individual vitamins. Each ingredient of such mixture of vitamins is known by a particular name, such as vitamin A, or vitamin D etc. and has the characteristic attached to that particular vitamin and can be used only for removing or supplementing particular deficiency in the human body. The intermixture of vitamins is required to fulfill multifarious deficiency. Each of the vitamins, individually has a different name, characteristic for specific use. By mixing such vitamins, the characteristics of individual vitamins get merged with the vitamin mix in such a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in pre-determined ratio with the help of electromechanical device such as mixture/Blender by effecting a uniform dispersion of liquid, semi-solid or solid ingredients of mixture by means of mechanical agitation. It was also specified in the show cause notice that when different vitamins are mixed in certain proportions then the original property of a particular ingredient is lost and is mixed with properties of other ingredients with the result a new and different product having distinct name, character or use emerges which is known intermixture of vitamins . Undisputedly, the said facts were neither denied nor disputed. It is also admitted fact that the product so obtained has shelf-life and is captively consumed by the appellants. 11. Similarly in relation to the process of oil soluble vitamins, it was stated in the show cause notice that for oil soluble vitamins namely , vitamin A, Vitamin D3, and Vitamin E, the vitamins are taken from the refrigerator from individual bottles and after preheating at specific range of temperature, the specific quantity of each vitamin is taken and transferred to stainless mixture and mixing is done for 20 minutes with electrically operated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic category of vitamin to which it belongs to. If it belongs to A category, it would be vitamin A, if it belongs to D category, it would be vitamin D and the like. In the case of intermixture of vitamins, it is known as the intermixture of vitamin or vitamin mix and not by individual name of any one or more of vitamins. All these facts are neither denied nor disputed. Being so, the fact that the product which emerges out of the process of intermixture of different vitamins in a given proportion does not carry the same identity as that of each of such vitamins intermixed, and that the process of intermixing of various vitamins in given proportion bring out another product having distinct identity with different characteristics and use in comparison to each of vitamins which are mixed together, is clearly established. Therefore, the basic ingredients of the definition term manufacture of a product stand proved from the records. 14. It is to be noted that the process of intermixing of vitamins is not done in the course of process of manufacture of final product i.e. baby food. But it is an independent process, as a result of which a distinct commodity emerges which is thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll remains ore (Chowgule s case, supra), the retreated tyres still remain tyres (P.C. Cheriyan case, supra). 17. The Delhi High Court after taking note of various judgments of the Supreme Court and referring to the facts of the case in Metal Forgings Pvt. Ltd. held thus - Flanges cannot be properly called shapes and sections . There is no substance in the contention that because flanges are shapes and sections at initial stage of forging, they always remain so even after processes of machining, polishing and drilling are undertaken. Flanges are forged shapes and sections before aforesaid processes and after these processes become merchandise of a very different kind, namely, machinery part. The essence of manufacture is that what is made shall be a different article from that out of which it is made. Flanges are made out of forged shapes and sections. Both are different articles. It is also clear that to flanges nothing more is required to be done at the customers end and they are straightaway identifiable as machinery parts. They are known and are regarded in the market as finished machine parts. The appellants want us to hold that these machine parts are not machine parts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition with reference to Entry 84 List-I of the Seventh Schedule to the Constitution. Since the constitutionality of the said definition has been repeatedly upheld with reference to both Entries 84 and 97 of List-I (Empire Industries and Ujagar Prints), the definition must be understood in terms it is couched. It should also be remembered that the question whether a particular process does or does not amount to manufacture as defined under Section 2(f) is always a question of fact to be determined in the facts of a given case applying the principles enunciated by this Court. One of the main tests evolved by this Court is whether on account of the processes employed or applied by the assessee, the commodity so obtained is no longer regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes (Ujagar Prints). 20. In Collector of Central Excise v. Carbide Chemicals reported in 1993 (68) E.L.T. 125, the Tribunal while dealing with the question as to whether the process of making cross linkable polyethylene from polyethylene granules by addition of dicumyl peroxide and an antioxidant amounted to manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld render the article liable to excise duty. The contention was rejected being based on misunderstanding of law. It was specifically held that :- The word manufacture is defined in Section 2(f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product viz. circles The appeal against the said order was dismissed by the Apex Court and the same is reported in Carbide Chemicals v. Collector - 1995 (78) E.L.T. A 33 (S.C.). 22. In Brooke Bond India Ltd. v. Union of India and others reported in 1984 (15) E.L.T. 32 (A.P.) the Andhra Pradesh High Court, after taking stock of various decisions of the Apex Court, held that the test for determining manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity . It was further held that it is only when the change, or a series of changes, take the commodity to the point when commercially it can no lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reported in 2000 (115) E.L.T. 467 and C.C.E., Meerut v. Goyal Gases Private Ltd. reported in 2000 (119) E.L.T. 5 (S.C.), the process of mixing of oxygen and nitrogen was held as not amounting to manufacture because of absence of evidence to establish that it amounted to manufacture. The said decision was followed in Modi Alkalies Chemicals Ltd. v. C.C.E., New Delhi reported in 2002 (146) E.L.T. 555. The decision in Laljee Godhoo Co. v. C.C.E., Mumbai reported in 2001 (132) E.L.T. 287 was on the ground that there was no chemical reaction in the process undertaken. However, it has been clearly held by the Tribunal that the absence of chemical reaction in the process of mixture of the components is no criteria to decide whether the process amounts to manufacture or not. 28. In C.C.E., Indore v. Pure Pharma Ltd. reported in 2002 (143) E.L.T. 386 it was held that medicines supplied to Government by placing those manufactured by the assessee along with the bought out items in a Medicine Kit does not amount to manufacture in terms of Chapter Note 5 to Chapter 30 of Central Excise Tariff Act, 1985. 29. In Dol Sun Containers Pvt. Ltd. v. C.C.E., Jaipur reported in 2003 (151) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Aspinwall Co. Ltd. v. Commissioner of Income Tax, Ernakulam reported in 2001 (133) E.L.T. 18 (S.C.) while observing that if the activity or process brings out a complete transformation in the input material so as to produce a commercially different article or commodity, it will be a manufacturing activity and therefore, conversion of raw berries plucked from the plant into coffee beans is a manufacturing activity. 36. The decision of the Madhya Pradesh High Court in S.N. Sunderson (Minerals) Ltd. v. Superintedent (Preventive), Central Excise, Indore reported in 1995 (75) E.L.T. 273 was to the effect that the operation of crushing limestone to bring into existence the limestone chips of a particular size amounted to manufacture as the new product with different name, character and use was formed and the said decision was confirmed by the Apex Court in the appeal arising from the said decision reported in 2002 (143) E.L.T. 483 (S.C.). 37. In Aditya Mills Ltd. v. Union of India reported in 1988 (37) E.L.T. 471, the assessee s contention that since the assessees had already paid duty on polyester spun yarn manufactured by them in their factory and they had purchased dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harging this burden may not necessarily be by producing evidence in that regard by the department itself. Time and again, the Tribunal and the various other Courts have held that when the burden lies upon a party to prove any fact in support of its case, the same can be discharged by leading evidence by the same party on whom the burden lies as well as by pointing out the evidence led by the opposite party which can establish such fact. To discharge the burden of proof, the party on whom the burden lies need not necessarily lead evidence by itself. The burden can be discharged even by relying upon the evidence produced by the other party. It can also be discharged by relying upon the admitted facts or undisputed facts. Bearing this in mind, one has to analyse the materials on record to ascertain whether the issue of marketability of the product in question stands established or not. 42. Undisputedly, in the case in hand, there are statements recorded of the officers of the assessees and also other documentary evidence placed on record. It is the case of the Department that the fact that the vitamin mix is known in the market as vitamin premix or intermixture of vitamin has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as excisable goods. In the said case it was held as under :- The appellants are engaged in the manufacture of Aluminium Conductors (A.A.C.) and Aluminium Conductor Steel Reinforced (A.C.S.R.) and single wires in their factory. The appellants purchased the Aluminium Wire Rods from different manufacturers for the purposes of manufacture of their final product. They also imported Aluminium Ingots under D.E.E.C. Scheme, against the exports made by them. A part of the Aluminium Ingots thus received by the appellants was sent to other job workers for conversion into wire rods under the provisions of Notification No. 214/86 and/or Rule 57F(2) procedure with the prior permission of their jurisdictional Central Excise Authorities. The Wire Rods were brought back in their factory and were used in the manufacture of Aluminium Wires. The appellants also converted the Aluminium Ingots into Wire Rods which were subsequently drawn by them into wires. Aluminium Wires, which are the final products of the appellant firm were cleared without payment of duty under the provisions of Notification No. 180/88-C.E., dated 13-5-1988. The present duty has been confirmed against the appellants on the Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by them and ultimately, issued for the manufacture of Aluminium Wires, as observed by the adjudicating authority. The appellants are also sending the Aluminium Ingots to their job workers for conversion into Wire Rods. These Wire Rods so manufactured by the job workers were being sent back by them to the appellants and they were further using the same in the manufacture of Aluminium Wires. Thus, the factum of receipt of Wire Rods by the appellants from their job workers and further utilisation in the manufacture of their final product duly establish the capability of the Wire Rods to be marketed. It is seen that the Hon ble Supreme Court in the case of Andhra Pradesh State Electricity Board v. Collector of Central Excise, Hyderabad reported in 1994 (70) E.L.T. 3 (S.C.) = 1994 (1) RLT 44 (S.C.) has observed that the marketability is a question to be decided in the facts and circumstances of each case and there can be no generalisation. Further, as long as the goods are marketable, the same are goods for the purposes of Section 3 of the Act and the actual fact of putting the goods in the market is not the criterion. For better appreciation of the law laid down by the Hon ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty, the Apex Court held that it makes clear that if a manufactured item covered by the charge of excise duty by the charging provisions of the Central Excise Act is captivity consumed, it would amount to removal of such manufactured item. It was further held that Consequently once the yarn is manufactured in the weaving department of the composite textile mill and is taken to the spinning department for being captively utilised by way of consumption in spinning department, and gets consumed, it is deemed to have been removed within the meaning of Rule 9(1). Once that happens, the liability of such manufactured yarn to pay excise duty at the then prevalent rate of duty is crystallized . 50. In Aggarwal Rolling Mills v. C.C.E. , New Delhi reported in 1997 (93) E.L.T. 615 , the Tribunal held that - Ld. Counsel s contention that untrimmed circles/sheets are not marketable commodity is not acceptable inasmuch as beyond making an assertion to this effect no material has been produced in support of the above contention. The Central Excise schedule is a schedule describing the goods which are excisable therefore, in the normal course, an item mentioned therein is to be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanpur Chennai reported in 2005 (190) E.L.T. 301 after taking note of the various decisions including the decision delivered by the Apex Court had held that the fact that the goods are not in fact marketed is of no relevance. Even if the goods are available from one source or a specified market, it makes no difference so long as they are available for purchasers. Even if there is only one purchaser, the article must be held to be marketable. The marketability of the articles does not depend upon the number of purchasers nor the market is confined to any territorial limit. 53. The Supreme Court in A.P. State Electricity Board v. C.C.E., Hyderabad reported in 1994 (70) E.L.T. 3 had ruled that so long as the goods are marketable they are goods for the purpose of Section 3 of the said Act. It is not necessary that the goods should be generally available in the market. Even if the goods are available from one source or from specified market, it makes no difference. 54. In Union of India v. Sonic Electrochem (P) Ltd. reported in 2002 (145) E.L.T. 274 (S.C.) , it was ruled by the Apex Court that it is difficult to lay down a precise test to determine the marketability of the article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Apex Court in Board of Trustees case was dealing with the question as to whether the cement, concrete armour units installed in the harbor area constituted excisable goods. In the said case, the cement, concrete armour units were used for port trust for installation of break waters in the outer harbor for the purpose of keeping the water calm and tranquil. Each of these units was weighing 50 MTs. They were like tripods used to keep the water calm and tranquil. They were essentially in prisomoid form and they were manufactured with certain specifications and were harbour or location specific. Besides, there was no evidence to show that those units could be used in any other harbour or that they could be bought or sold in the market. In that context, it was held by the Apex Court that the point on marketability of those units was not established. 61. In Hindustan Zinc Ltd. case (supra), the question before the Apex Court was whether the intermediate product produced in the manufacture of zinc was marketable. The facts reveal that in the course of extraction of zinc silver concentrate, a mixture or a combination of zinc chloride, silver chloride, lead and other materials was em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the intermediate product manufactured by the assessee were analysed by the expert. 64. In Moti Laminates Pvt. Ltd. case, the issue was whether the goods mentioned in the schedule to the Tariff Act were dutiable as such or they were excisable goods as defined under the Act only when they are marketable or capable of being marketed. In that case, in the course of manufacturing process, a solution was emerging as a result of continuous reaction and such solution was collected in the semi-processed condition and was used without further processing in the manufacture of the final product. Such semi-processed solution was neither marketed nor sold by the assessees and it was used captively in the same condition in the process of manufacture of the final product. In the background of those facts and circumstances since the product was not a complete product, but it was in incomplete and semi-processed condition, it was held that it could not be considered as goods on which excise duty could be levied. 65. Considering the above facts of the case in hand, it is absolutely clear that the product in question is for all purposes a complete product, and it does not require any further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketable to the consumer shall not amount to manufacture . It is therefore, contention that the legislature deemed to have said that the process undertaken by the appellants does not amount to manufacture. Reliance is placed in the matter of Lakme Lever Ltd. v. C.C.E., Mumbai-III reported in 2001 (127) E.L.T. 790, Lupin Laboratories Ltd. v. C.C.E., reported in 2002 (139) E.L.T. 366 and Dol Sun Containers Pvt. Ltd. v. C.C.E., reported in 2003 (151) E.L.T. 624 and Conybio Healthcare (India) Pvt. Ltd. v. C.C.E., Chennai reported in 2007 (216) E.L.T. 586. Further, referring to the word consumer in the said Note it is sought to be contended that the same refers to retail consumer and therefore, in the facts of the case, it is submitted that by virtue of mixing of various vitamins, the product cannot be said to have rendered marketable to any retail consumer. 68. On the other hand, it is submitted on behalf of the Department that fiction created by the Note covers two different situations. However, the full effect has to be given to any such fiction created by a statute. Referring to the word consumer it is contended that it refers to a person or thing that consumes or uses the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs . In the State of Bombay v. Pandurang Vinayak reported in AIR 1953 SC 244, it was held that after ascertaining the purpose, full effect must be given to the statutory fiction and it should carry to its logical conclusion. However, it was also ruled in C.I.T., Delhi v. S. Teja Singh reported in AIR 1959 SC 352 that it would be proper and even necessary to assume of those facts on which alone the fiction can operate. 70. While applying the law laid down by the Apex Court in relation to legal fiction created by the statutory provision under Note 11 of Chapter 29 quoted above, we will have to primarily ascertain the purpose behind introducing the said Note 11. The Note certainly relates to connotation of the term manufacture and it seeks to widen the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the Note discloses the crucial requirement thereof to be the treatment which would confer upon the product those attributes of marketability which it had not possessed prior to such treatment. The Note neither requires the product to be incomplete product nor being totally non-marketable one prior to any such treatment. Certainly, the activity of labeling or relabeling or retail packing of a product could be for the purpose of finding the market, but it need not be unless the product is ready to be marketed. The purpose of labeling or repacking can certainly improve the marketability status of the product. That does not mean that in the absence thereof, the product has necessarily to be a non-marketable. 74. The Note merely speaks of rendering the product marketable to a consumer. Rendering the product marketable may mean as well as may not mean to render the product marketable to any particular class of consumer or for a consumer from a particular area or even to improve or change the marketability for that product from the existing nature of marketability to another, or to acquire that type of marketability which the product did not have. Being so, the fact that the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Act, be deemed to be such agent of non-resident person and whereby Section 42 further provided that such agent shall be deemed to be for all purposes of the Act, the assessee, it was held by the Privy Council that such agent was the assessee for all purposes of the Act and hence chargeable to income tax and the term assessee being defined by Section 2(2) as the person by whom the income tax is payable (vide C.I.T. , Bombay v. Bombay Corporation reported in AIR 1930 Privy Council 54 ). In short, the intended effect of the legal fiction should not be allowed to be defeated by prescribing artificial restrictions to the deeming fiction. 77. While considering the Chapter Note No. 6 of Chapter 34 which provided that in relation to the product sub-heading number 3402 90, packing or repacking into smaller pack including packing or repacking of bulk pack to the retail packs or adoption of any other treatment to render the product marketable to the consumer shall amount to manufacture , the Apex Court in Mercantile Company v. C.C.E., Calcutta reported in 2007 (217) E.L.T. 330 (S.C.) held that the term manufacture with reference to repacking from bulk packing to retail packs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also. 80. In Lakme Lever Ltd. case, it was held by the Tribunal, while dealing with the Note 4 of Chapter 33 of the Tariff Act that the word render signifies that the process to fall within the scope of any other treatment , it must be one which confers upon a product the attributes of marketability which it did not possess earlier. In other words, if certain attributes of the marketability which were lacking in the product are made available to the product that process would be a treatment amounting to manufacture. That does not necessarily mean that such product ought not to have any of the attributes of marketability prior to undergoing such process. It might had or not or it might had some of those attributes but not those which are necessary to cater to a particular market or class of consumer. It was also held in the said case that the word consumer refers to one who purchases the product for consumption. This observation is apparently consistent with what is provided under the Note. The Note nowhere speaks of necessity of consumers of a particular class. It can be consumed captively by the manufacturer itself. Nothing prevents the manufacturer himself from becoming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail consumer or that the Tribunal has held so. One cannot understand the ratio of an order ignoring the facts of the case and the points which were considered in the matter while deciding the same. 82. In Dol Sun Containers Pvt. Ltd. case, the company was engaged in manufacture of corrugated boxes/containers. The company was purchasing corrugation gum in powder form from the market. That gum powder was converted by the company into liquid gum by simply adding and mixing water therein without the aid or use of any chemical. Such liquid gum was captively used by the company for manufacture of corrugated boxes/containers. The gum powder purchased by the company was used as adhesive and even after converting into liquid form by mixing water therein, it remained the adhesive. No new distinct marketable product was brought out into existence by them by mere converting the gum powder into liquid gum with the help of simple water. The said activity was held as not amounting to manufacture in terms of Section 2(f) of the said Act. The Tribunal while dealing with the Note 3(f) of Chapter 35 which provided that in relation to products of this chapter note, labelling or relabelling of conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firms to which the garment was sold by the assessee in the said case were their distributors and their product was not directly marketed to the consumer. The distributors had to pack the garments in respective printed cartons before retail sale to the consumers. In other words, it was the activity of the distributors which rendered the product marketable directly to the consumers so as to attract Chapter 4 and therefore, there was no repacking from bulk pack to the retail pack rendering the product marketable directly to the consumer by the assessee and therefore, the applicability of Chapter Note 4 was ruled out. Apparently, the decision was given in the peculiar facts of the case established before the Tribunal. That is not the case in the matter in hand. 84. In Johnson Johnsons case (supra), the Apex Court while considering the scope of Chapter Note 5 of Chapter 30 which extended the meaning of the term manufacturers while providing that in relation to products of Heading No. 30.03, conversion of powder into tablets and capsules, labelling and relabelling of containers intended for consumer and repacking from bulk packs to retail packs or adoption of any other treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its order dated 31-10-2000 held that the goods were classifiable under Chapter Heading 2001.90 were chargeable to duty and therefore, the duty was demanded. When the matter came up before the Tribunal, the same was allowed and it was held that the goods cleared by the assessees were not assessable to duty. The Apex Court after considering the rival contentions and taking note of the decisions in the matter of Amit Agro Industries Ltd. v. C.C.E., Ghaziabad reported in 2007 (210) E.L.T. 183 (S.C.), Collector of Central Excise, Shillong v. Wood Craft Products Ltd. reported in (1995) 3 S.C.C. 454 = 1995 (77) E.L.T. 23 (S.C.), Collector of Central Excise, Bombay v. S.D. Fine Chemicals Pvt. Ltd. reported in (1995) Supp. 2 SCC 336 = 1995 (77) E.L.T. 49 (S.C.), O.K. Play (India) Ltd. v. Commissioner of Central Excise, New Delhi-II reported in (2005) 2 SCC 555 = 2005 (780) E.L.T. 291 (S.C.), Union of India and Another v. Delhi Cloth General Mills Co. Ltd. (supra) held that Central Excise Tariff Act is broadly based on the system of classification from the International Convention called the Brussels Convention on the Harmonised Commodity Description and Coding System (Harmonized System ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the definition of the expression manufacture under Section 2(f) of the Act is not confined to the natural meaning of the expression manufacture but is an expansive definition. Certain processes, which may not have otherwise amounted to manufacture are also brought within the purview and placed within the ambit of the said definition by the Parliament. Not only the processes which are incidental or ancillary to the completion of manufacture product but also those processes as are specified in relation to any particular goods in the Section or Chapter Notes to the Tariff Schedule to the Central Excise Tariff Act, 1985 are also brought within the ambit of the definition. 90. In Collector of Central Excise, Bombay v. French Dyes Chemicals (P) Ltd. reported in 1997 (90) E.L.T. 411, the Tribunal while dealing with the Chapter Note 6 of Chapter 32 held that the same would prevail over the general concept of manufacture as the legal fiction has been created under the said Chapter Note to understand as to what amounts to manufacture. By applying the said legal fiction, one can find that even diluting of a unformulated dye will amount to manufacture if this diluting is done for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. Rather, the vitamins mix produced by the appellants satisfies all the necessary attributes to make it a marketable product. 93. Merely because the product in question is not being bought and sold in the market or that there is no activity of repacking from the bulk packs to the retail packs, the product cannot escape the applicability of the latter portion of the Note 11 of the said Chapter. It is not only the activity of mixing of different vitamins but the collection thereof in containers and labeling with specific name followed by the product being stored in the shelf and used as and when required by the appellants and thus is captively consumed and at the same time, the materials on record disclose that similar type of product was procured by the appellants under invoices from the market and was used for similar purpose for which the product in question has been used and all these aspects clearly satisfy the requirement of second part of the said Note. 94. The fallout of the above discussion is that the points formulated for consideration in these appeals in terms of the direction by the Hon ble Supreme Court in the remand order in relation to the process u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court while dealing with the said issue has already held that the view taken by the Tribunal in the earlier order that the extended period of limitation was not invokable was justified. Consequently, the said issue already stands concluded by the decision of the Apex Court and is neither need to be considered nor in fact can be considered as we are dealing with the matter on remand to consider the specific issues referred for consideration under remand order. The enquiry in the appeal at this stage is confined to the issues formulated by the Hon ble Supreme Court in the remand order, and cannot travel beyond those issues. 96. As regards the penalties are concerned, the question of going into the said issue also does not arise as the remand order does not permit the said issue to be considered afresh. Needless to say that the quantification of the penalty in the cases covered by the order of the Apex Court will have to be redone bearing in mind the order of the Apex Court holding that there was no scope for invoking extended period of limitation. 97. The question of re-quantification of the demand on the ground of incorrectness also is no more open for consideration in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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