TMI Blog2011 (4) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... le interpretations leads to such a result, howsoever attractive it may be - the attempt of the High Court to read down the provision by way of substituting the word OR by an AND so as to give relief to the assessee is found to be erroneous - appeal decided against assessee. - 3181 of 2010 - - - Dated:- 28-4-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Rep. by Sh. M.P. Singh, Advocate for the appellants. Rep. by Sh. R. K, Verma, DR for the respondent. Per: Shri Justice R.M.S. Khandeparkar: Heard at length the learned Advocate for the appellants and learned DR for the respondents in terms of order dated 21.02.2011 passed in Stay application No. 2962 of 2010. 2. This appeal arises from order dated 05.11.2009. By the impugned order, the appeal filed by the appellants against order of the adjudicating authority has been dismissed. The Deputy Commissioner, New Delhi by order dated 31.03.2008 revoked the central excise registration issued to the appellants as the appellants were not engaged in manufacturing activity and had ordered recovery of wrongfully availed cenvat credit including cess to the tune of Rs.30,47,793/- while imposing equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. 6. While assailing the impugned order, it is sought to be contended on behalf of the appellants that the process undertaken by the appellants amounts to manufacture and hence the product is excisable and, therefore, the cenvat credit could not have been denied to the appellants. It is the contention of the appellants that the process carried out by the appellants, include cutting of the jumbo rolls to required size and then printing with the details and specifications as provided by the buyers. In addition, a coating by a chemical namely, HSL (Heat Seal Laquer) is also required in cases of printing on the back side of the roll. In case of medicines and edible products, the details like ingredients, instructions for use, date of manufacture, date of expiry are legally required to be printed on packaging materials. The final product is commercially known as blister rolls and is used for packaging the specific commodities and, therefore, the final product is commercially different and distinct in name, character and use from the input namely aluminium foil. 7. Besides, once it is held that the duty has already been paid on the final product, it is not permissible to deny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut for interference in the concurrent findings arrived at by the authorities below. 14. It is further submitted by the DR that undisputed fact is that the appellants after procuring aluminium foil in roll form subject the same to the process of slitting to required size in roll form and thereafter prints such material as per the customer s requirement. There is already a decision on this aspect in the matter in M/s S.R. Tissues Ltd. (supra). Taking into consideration the decision in Swaraj Mazda Ltd., Shri Ram Packaging cases, the law being very clear on the questions sought to be raised for consideration, no interference is called for in the impugned order. 15. In addition to the decision in CCE, New Delhi-I vs. S.R. Tissues Pvt. Ltd. reported in 2005 (186) ELT 385 (SC), the DR has placed reliance on the decisions in CCE, Chennai-II vs. Tarpaulin International reported in 2010 (256) ELT 481 (SC), Union of India vs. J.G. Glass Industries Ltd. reported in 1998 (97) ELT 5 (SC), Anil Dang vs. CCE, Vapi reported in 2007 (213) ELT 29 (Tri. LB), CCE, Madras vs. Paper Products Ltd. reported in 2000 (115) ELT 277 (SC), CCE, Ahmedabad vs. Printorium reported in 1996 (87) ELT 432. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. In fact, the points which are sought to be raised in the matter are no more res-integra. The same already stands concluded by the decision of the Apex Court in CCE, New Delhi-I vs. S.R. Tissues Pvt. Ltd., reported in 2005 (186) ELT 385 (SC) read with the decision in Union of India vs. J.G. Glass Industries Ltd. reported in 1998 (97) ELT 5 (SC), CCE, Madras vs. Paper Products Ltd. reported in 2000 (115) ELT 277, CCE, Chennai-II vs. Tarpaulin International reported in 2010 (456) ELT 471 (S.C.) and CCE, Mumbai-V vs. GTC Industries Ltd. reported in 2011 (266) ELT 160 (Bom.). 21. The Apex Court in S.R. Tissues Pvt. Ltd. case, was dealing with the issue as to whether the process of unwinding cutting and slitting to sizes of jumbo roll of tissue paper could amount to manufacture on the first principal or under Section 2(f) of the said Act and answered the said issue that process of slitting /cutting of jumbo roll of plain tissue paper into smaller size would not amount to manufacture on the first principals as well as under Section 2(f) of the said Act. 22. In J.G. Glass Industries case, the Apex Court was dealing with the issue as to whether printing on glass bottles amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a continuous process and it did not emerge as a new commodity. It also reminded that the Apex Court in S.R. Tissues case has clearly held that mere mention of the product in tariff heading does not necessarily implies that the said product was obtained by process of manufacture. 26. The Tribunal also had occasion to deal with the similar points in case of CCE, Ahmedabad vs. Printorium reported in 1996 (87) ELT 432 (Tri) and in Anil Dang vs. CCE, Vapi reported in 2007 (213) ELT 29 (Tri. LB). In Printorium, the Tribunal while dealing with the issue as to whether printing of aluminium foil would amount to manufacture held that the same does not result in bringing out a new and distinct commercially known product and therefore, there was no manufacture involved therein. The decision was sought to be challenged by way of appeal to the Supreme court which came to be dismissed while relying upon the decision in J.G. Glass and the same is reported as Collector vs. Printorium reported in 1999 (111) ELT 124. The Larger Bench in Anil Dang case was dealing with the issue as to whether the slitting and cutting of duty paid plastic laminated film into smaller rolls amounted to manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. and 5 mtrs. were cut /slit and subsequently wound /spooled on the metal spools and 10 such spools were blister packed and sealed with aluminium foil. The assessee thus produced ribbons in spools out of jumbo rolls and the resultant product was a distinct, identifiable article having distinct name, function and use. The resultant product was also commercially distinct as understood in commercial parlance and had a separate market. Their function and use were also completely different and both products were not inter-changeable. The ribbon in jumbo rolls could not be used in a typewriter and similarly a person who required 30 pieces of spool ribbon would not be satisfied if he was offered jumbo rolls of equal length. A separate machinery and work force to manufacture ribbons in spool forms was required. When the jumbo rolls were cut into smaller size, they completely lost their identity and could not be used for same purpose as were used before cutting. Taking into consideration all these aspects, it was held that the said process amounting to manufacture. That is not the case in the matter in hand. The ribbons which were prepared out of jumbo rolls did not have the same function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aluminium labels in question are not products of printing industry . (Emphasis supplied Apparently, it has not been held that every printed material is a product of printing industry. On the contrary, it has been held that inspite of printing being involved, yet it may not be a product of printing industry and each case will have to be decided on the facts of the case and no generalization can be made. 29. In Johnson Johnson case, the issue related to the claim for exemption as the product of printing industry under Notification dated 01.11.1982 and the decision was based solely on the basis of ruling in Metagraphs case. 30. In Laminated Packings case, it was held that lamination indisputably amounted to manufacture and consequently the process of lamination of kraft paper with polyethylene, different goods came into being. The decision proceeded on undisputed principle of excise law, that lamination amounted to manufacture besides the fact that the process brought out totally different product from the inputs utilized in manufacture of such product. 31. In Ramsay India case, it was held that the base paper once converted into teleprinter rolls or taps chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the consequences of wrong availment of credit and liability to pay interest on such credit. The Apex Court after considering the provisions of law held that bare reading of Rule 14 of the Cenvat Credit Rules would indicate that the manufacturer or provider of the output service become liable to pay the interest alongwith duty where cenvat credit had been taken or utilized wrongly or has been erroneously refunded and that the provisions of Section 11AB would apply for effecting recovery. While interpreting Rule 14 it was held that:- 15. In order to appreciate the findings recorded by the High Court by way of reading down the provision of Rule 14, we deem it appropriate to extract the said Rule at this stage which is as follows: Rule 14. Recovery of CENVAT credit wrongly taken or erroneously refunded:- Where the CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same alongwith interest shall be recovered from the manufacturer or the provider of the output service and the provisions of Sections 11A and 11AB of the Excise Act or Sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes relevant and applicable for the purpose of making recovery of the amount due and payable. Therefore, the High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when CENVAT credit is wrongly utilized. Besides, the rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilized to straighten the crudities or ironing out the creases to make a statute workable. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/ statute and thus venture into a kind of judicial legislation. It is also held by this Court that the Rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. In this connection we may appropriately refer to the decision of this Court in Calcutta Gujarati Education Society and Another v. Calcutta Municipal Corporation and Others reported in (2003) 10 SCC 533 in which reference was made at para 35 to the following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency. In support of the same we may refer to the decision of this Court in Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd. reported in (1961) 2 SCR 189 wherein this Court at Para 10 has observed as follows:- 10 In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency . 20. Therefore, the attempt of the High Court to read down the provision by way of substituting the word OR by an AND so as to give relief to the assessee is found to be erroneous. In that regard the submission of the counsel for the appellants is well-founded that once the said credit is taken the beneficiary is at liberty to utilize the same, immediately thereafter, subject to the credit rules. 36. The issue regarding the liability to repay the credit with interst clearly stands answered by the above decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
