TMI Blog2014 (2) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... table since the product was assured by a buyer and there was no uncertainty about its sale. Therefore, what has been done by the first respondent/assessee was totally unrelated to the sale of the product and such activity would fall outside the scope and purview of Note 5 of Chapter 38 of the CETA Schedule. Activities done by the first respondent/assessee is not in any way transform the imported product into different product, which was distinct in name, character and use and were not incidental or ancillary to the completion of the finished product and thus not covered by the definition of "manufacture" under Section 2(f) of the Central Excise Act, 1944 read with Note 5 of Chapter 38 of the CETA Schedule - Revenue has not made out any ground to interfere with the order passed by the Tribunal - Decided against Revenue. - Civil Miscellaneous Appeal Nos.2784 of 2007 and 1354 of 2008 - - - Dated:- 3-1-2014 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Appellant : Mr. Rajnish Pathiyil in both CMAs. Central Government Standing Counsel For the Respondent : Mr. V. S. Manoj for in both CMAs. Mr. K. Vaitheeswaran for R1 R2- Tribunal JUDGMENT (The Judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as a trading activity and did not pay any duty of Excise for the clearances effected. The Department pursuant to certain investigation, issued three show cause notices for the period from March 1997 to January 1999, February 1999 to August 1999 and September 1999 to January 2000, alleging that the activity done by the first respondent/assessee amounted to "manufacture" in terms of Note 5 to Chapter 38 of the Central Excise Tariff Act Schedule (CETA Schedule] and therefore excise duty should have been paid on the goods sold by them in India. The Department invoked the extended period of limitation for issuance of the show cause notice alleging that the first respondent/assessee had suppressed facts. The show cause notices also proposed to impose penalty. The first respondent/assessee submitted their reply and the Commissioner who adjudicated the three show cause notices rejected the case of the Department and dropped the proposals made therein by order dated 30.12.2000. As against this, the Revenue preferred appeal to the Tribunal which was rejected by order dated 21.03.2007, against which the Revenue preferred CMA No.2784 of 2007. 6. Insofar as the show cause notice dated 05.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities done by the first respondent/assessee would amount to manufacture since the imported additives after undergoing the said activity have transformed into a new excisable product distinct in name, character and use and hence liable for levy of excise duty at the time of their clearance. 11. The Tribunal pointed out that as per the Board's instructions, reported in 1996 [87] ELT T18/19, the Board clarified that doubts have been raised regarding the excisability of imported finished medicines including life saving drugs exempted vide Customs Notification No.13/95-Customs, which are marketed by the assessees therein in the country and the Board after examining the matter clarified that the assessees therein while pasting stickers on the cartons of the imported medicines are in fact trying to comply with the requirements of the Drugs and Cosmetics Act, 1940 and are not altering any information originally contained in the package. In this regard, the Board also took note of the opinion of the Drug Controller of India that relabelling as done by the assessee therein is necessary to meet their requirements of Rule 96 of the Drugs and Cosmetics Rules, 1945. Therefore, it was clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the said declaration is not covered by the said Rule 33 Standards of Weights and Measures [Packaged Commodities] Rules, 1977 and the declaration was not to comply with the provisions of the said Rules and the Board's circular relied on by the Tribunal is not applicable to the facts of this case. 14. We have heard the learned counsel appearing for the first respondent/assessee on the above submission. 15. The Original Authority, who adjudicated the show cause notices found that the first respondent/assessee had sold the goods under dealer invoices and in the dealer invoices the particulars of the original supplier has been mentioned and such documents were pre-authenticated by the Central Excise Inspector before each and every clearance and the first respondent/assessee never intended to suppress the import identity of the goods and the buyers of the first respondent/assessee were very well aware that they are getting under the said dealers invoices goods, which were imported and not manufactured by the first respondent/assessee. Further more, the inscription of the name of the first respondent/assessee along with other details was with a view to comply with the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packs were then taken to the importers ware houses where stickers were affixed containing information such as name and address of the importers, maximum retail price, net weight, etc., and as they merely imported ready to market retail packs and in the absence of any evidence to show that they indulged in further activity, which required packing or re-packing of bulk packing into retail price within the extended meaning of "manufacture", the Hon'ble Supreme Court dismissed the appeals. 19. The provisions what we are concerned under Note 5 to Chapter 38 is not different from what we find under Note 3 to Chapter 18 and Note 3 to Chapter 19 of the Central Excise Tariff Act, 1985 on the meaning assigned to the expression "manufacture". On the facts found, except for re-labelling, the assessee had not broken the bulk packs into smaller packs. Hence, we do not find any justifiable ground to accept the plea of the Revenue. Consequently, the CMA No.2784 of 2007 fails and the same is dismissed. 20. Insofar as CMA No.1354 of 2008 is concerned, the nature of activity was also similar to that of the activity, which is the subject matter of CMA No.2784 of 2007 and the Tribunal by following ..... X X X X Extracts X X X X X X X X Extracts X X X X
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