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TMI Blog2012 (5) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the Revenue that they are manufacturing 'speed' brand petrol by the process of blending of petrol and Multi-Functional Additive. Consequently, they are issued with a show cause notice on 30.11.05 demanding duty of Rs. 18,55,20,285/- and Education Cess of Rs. 36,79,025/-. 2. Learned Commissioner of Central Excise, Patna has confirmed the duty including cess of Rs. 15,26,92,645.00 and imposed equivalent penalty, observing that the process of blending of MS with MFA results into a product called as 'speed' having different physical and chemical characteristics, nomenclatures and uses. The said new product is not only costlier to the normal MS but is more efficient in its utility also. He has reasoned that addition of MFA increases the adequacy of fuel system, cleanliness and performance of engines. Finally, all these aspects, he has concluded that 'speed' is a distinct manufactured product in terms of Section 2(f)(i) of the Central Excise Act, 1944 and accordingly liable to duty. Hence this Appeal. 3.1. Learned Advocate appearing for the Appellant has submitted that the dispute in the present case relates to dutiability of the product called as 'sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC), wherein their Lordships have held that by the process of printing names or logos on a bottle does not make the printed bottle a new commodity. Hence, no manufacturing process is involved. Further, in support of their contention that no new product comes into existence, they have also relied upon the following judgements of the Hon'ble Supreme Court:- (i) CIT vs. Tara Agencies 2007(214) ELT 491 SC; (ii) Shyam Oil Cake vs, CCE 2004 (174) ELT 145 SC; (iii) CCE vs. S R Tissues Pvt. Ltd. 2005 (186) ELT 385 SC; (iv) Metlex (I) Pvt. Ltd. vs. CCE 2004 (165) ELT 129 SC. 3.3. The Appellant has submitted that in their own case, the Hon'ble Tribunal has decided the issue in their favour involving identical facts, as reported in 2009 (234) ELT 648 in the case of Hindustan Petroleum Corporation Ltd. vs. CCE, Delhi & Rohtak, which was later followed by another Bench in the case of Bharat Petroleum Corporation Ltd. vs. CCE, Lucknow reported in 2009 ELT (240) 403. It is submitted that an SLP has been filed against the Order of the Tribunal before the Hon'ble Supreme Court and the same has been though admitted, no stay has been granted. Hence, in view of the ratio of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no change in the characteristics or identity of bitumen and only its grade or quality is improved. It is observed that the said process does not result in transformation of bitumen into a new product having a different identity, characteristic and use. The end use also remains the same, namely for mixing of aggregates for constructing the roads. 4.1. Per contra, the learned AR for the Revenue submitted that the reliance placed by the learned Advocate for the Appellant on the case of Hindustan Petroleum Corporation' Ltd.(supra) is not binding on the Bench as the said decision has been taken on appeal before the Hon'ble Supreme Court and the Civil Appeal has been admitted. In support of his submission, he placed reliance on a 3-Judge Bench of the Hon'ble Supreme Court in the case of Union of India vs. West Coast Paper Mills Ltd. reported in 2004 (164) ELT 375 (SC). The learned AR referring to the argument of the Appellant in respect of sub-para 4 of para 14 of Kunhayammed vs. State of Kerala reported in 2001 (129) ELT 11 (SC), submitted that as the Revenue's Civil Appeal is admitted, the Order of the Tribunal in the case of HPCL(supra) is binding only between the/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise. He has also referred to the judgement of the Hon'ble Supreme Court in CCE, New Delhi-I vs. S.R.Tissues Pvt. Ltd. reported in 2005 (186) ELT 385 (SC) on the same issue. 4.4. Learned AR supported the findings of the Adjudicating Authority recorded at paras 14 and 15 of the impugned Order, in advancing his argument that there is a change in the nomenclature, characteristics and usages, after blending MS with MFA resulting into emergence of a new product namely, 'speed'. Learned A.R. has also referred to the ratio of the Tribunal Order No.A-118-119/KOL/2011 dated 20.04.2011 in the case of CCE, Patna vs. IOC, Barauni, wherein it has been held that blending of imported superior kerosene oil with indigenous kerosene oil is a process of manufacture because the smoke point was being raised in the process. Further, he has said that even if there is no change in classification, but in view of the ratio of the Hon'ble Supreme Court in the case of Prachi Industries vs. CCE, Chandigarh reported in 2008 (225) ELT 16 (SC), it is clear that if once the process amounts to manufacture, it is irrelevant whether there is a change in the entry or otherwise. Summing up his argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar issue on identical facts where in the Appellant was also a party relating to their other unit, came before the Coordinate Bench of this Tribunal in the case of Hindusthan Petroleum Corporation Ltd. vs. CCE, Delhi & Rohtak reported in 2009 (234) ELT 648. After considering at length the arguments advanced from both sides, almost on similar lines presented before us, the Tribunal has come to the conclusion that the process of mixing duty-paid MS, with MFA does not result into a new produce and hence the process of blending/mixing of MS with MFA is not a process of 'manufacture' as defined under Section 2(f) of the Central Excise Act, 1944. The finding of the Bench is recorded at para 4.1 as follows: "4.1. The MS and HSD after being blended with small quantity of MFAs remain MS and HSD only, conforming to ISI specifications IS : 2796 - 2000 and IS : 1460 - 2000 respectively. Just because blending improves their quality and after blending they are sold under different brand names like 'Speed', 'Power', Turbojet' etc. they do not become products different from unblended MS/HSD, with different characteristics and usages. Their characteristics remain the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kunhayammed vs. State of Kerala (supra), specifically drew our attention to para 14(4) of the cited judgement which reads as under: "14....................................In our opinion, the legal position which emerges is as under:- 1. xxx 2. xxx 3. xxx 4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge." 5.4. We do not find any reason or necessity to enter into the said controversy of whether the judgement of the Co-ordinate Bench in the HPCL case (supra) is binding on us or otherwise when the SLP against the said Order has been admitted by the Hon'ble Supreme Court and the same is pending. We find that the Co-ordinate Bench has on almost on similar f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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