TMI Blog2012 (12) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced in the Central Excise Act, 1944 by way of amendment w.e.f. 1-3-2003, and the instant case relates to the period earlier to the amendment i.e. October and November 2003 as such deeming definition provided under Section 2(f)(iii) is not applicable to the present case. The activity of the appellant in packing the twin blade cartridge as also Gillette shaving gel tube in a combination pack and selling it at a discounted MRP of Rs. 85/- does not amount to manufacture. As no mere product has come into being the combination product does not attract incidence of excise duty. Admittedly, the appellant has paid duty on Gillette shaving gel tube while procuring them from GIL and he has paid excise duty on MRP of the twin blade cartridges while clearing the combination pack. - Demand and penalty set aside - decided in favor of assessee. - E/1269 and 1271/2005 - A/435-436/2012-EX(BR)(PB) - Dated:- 13-4-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri Nikhil Agarwal, Advocate, for the Appellant. Shri N. Pathak, AR, for the Respondent. [Order per : Justice Ajit Bharihoke, President]. This appeal is directed against the impugned order of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appearing for the appellant has submitted that the order-in-original as also the impugned order are not sustainable in law for the reason that the orders are based on mis-interpretation of law. Expanding on the argument ld. Counsel submitted that both the adjudicating authority as also the appellate authority have failed to appreciate that the activity of assembling a combination pack of two different articles does not fall within the ambit of manufacture as defined under Section 2(f) of the Central Excise Act, 1944. Ld. Counsel further submitted that the adjudicating authority as also the appellate authority failed to appreciate that MRP printed on the cartridge of twin blade and the shaving gel tube packed in the combination pack were respectively Rs. 66/- and Rs. 49/- and the shaving gel tubes were procured from GIL on payment of excise duty. Thus, the appellant was right in paying excise duty on the cartridge of twin blade manufactured by them calculated on the basis of MRP Rs. 66/-. It is submitted that since excise duty have been paid by the appellant on both the items as per their MRP. It is obvious that he had paid excise duty at MRP of Rs. 66/- plus Rs. 85/- = Rs. 115/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order but result in loss to the department. Thus, in our considered view this is not a case of evasion of excise duty. 10. Ld. Counsel for the appellants has also contended that the Commissioner (Appeals) has failed to appreciate that the activity of packing the cartridges of twin blades along with duty paid Gillette shaving gel in the combination pack does not amount to manufacture of goods because the aforesaid activity has not changed the character either of the twin blade cartridges or the Gillette shaving gel tube as they were known to the market and since the packing aforesaid two articles in a combination pack did not amount to manufacture. The adjudicating authority and the appellate authority were wrong in holding that the appellant has to pay excise duty on MRP Rs. 85/- printed on the combination pack particularly when admittedly the excise duty has been paid on both the articles as per their MRP. In support of this contention, he has relied upon several judgments of the Tribunal as also the judgment of Andhra Pradesh High Court in the case of XI Telecom Ltd. v. Supdt. of C. Ex., Hyderabad - 1999 (105) E.L.T. 263 (A.P.). 11. In order to appreciate the above cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent one. In Moti Laminates Private Ltd. v. Collector of Central Excise, Ahmedabad (supra) while reiterating the judgment in D.C.M. s case the Supreme Court observed : Therefore, where the goods are specified in the schedule they are excisable goods but whether such goods can be subjected to duty would depend on whether they were produced or manufactured by the person on whom duty is proposed to be levied. The expression produced or manufactured has further been explained. By this court to mean that the goods so produced must satisfy the test of marketability. Consequently, it is always open to an assessee to prove that even though the goods in which he was carrying on business were excisable goods being mentioned in the schedule but they could not be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable of being marketed. The next decision to be considered is Porritts Spencer (Asia) Ltd. v. C.C.E., New Delhi (supra) while reiterating the test laid down in D.C.M. s case it was held : Every change does not necessarily fall within the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture. 13. Sh. Nagesh Pathak, ld. AR for respondent submits that admittedly this is a case of repacking twin blade cartridge as also the shaving gel tube in a combination pack and altering the retail sale price (MRP). As such the combination packs falls within the deemed definition of manufacture under Section 2(f)(iii) which reads thus :- Manufacture includes any process :- (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or lavelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer 14. Above argument is of no avail to the respondent for the reason that Section 2(f)(iii) was introduced in the Central Excise Act, 1944 by way of amendment w.e.f. 1-3-2003, and the instant case relates to the period earlier to the amendment i.e. October and November 2003 as such deeming definition provided under Section 2(f)(iii) is not applicable to the present case. 15. In view of the above, we conclude that the activity of the appellant in packing the ..... 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