TMI Blog2014 (9) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the activity as 'manufacture' and discharging excise duty liability thereon. Therefore, there is no reason why in respect of the same activity on the same product undertaken at their Bhiwandi godown, a different stand should be taken holding that the activity does not amount to 'manufacture'. The appellant cannot choose to discharge excise duty liability in some cases and not discharge duty liability in some other cases. Therefore, the claim of the appellant that the activity undertaken by them does not amount to 'manufacture' does not appear to convincing at this stage. During the course of argument, a question was also put to the appellant as to why they are procuring these parts and distributing it to their customers. In reply ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lakhs has been imposed in lieu of confiscation. A penalty of ₹ 15 lakhs and ₹ 50 lakhs have been imposed on the General Manager of the appellant firm and on the appellant firm under Rule 26 of the Central Excise Rules, 2002. Aggrieved of the same, the appellant is before us. 2. The facts relevant to the case are that the appellant, M/s Jost's Engineering Company Ltd., is a manufacturer of Material Handling Equipment and its parts. They are also trading in these goods, which were procured locally as well as imported and were being traded from their godown at Bhiwandi. Such traded parts were cleared from the Bhiwandi godown of the appellant. The case of the department is that the parts which are procured are labeled and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lastic bag, there is a sheet of paper indicating the invoice no., item no., customer's name, purchase order no. and date, description of the goods, quality etc. the plastic bags, in which the goods are packed and sold are not unit containers, so as to attract excise duty liability. Reliance is placed on the decision of the apex court in the case of Nestle (India) Ltd. Vs. CCE, Chandigarh - 2003 (157) ELT A261 (SC) apart from the decision of the Tribunal. It is also their contention that activity of putting the paper tag giving the details as mentioned above does not amount to 'labeling or re-labeling' and reliance is placed on the decision of the apex Court in the case of Johnson and Johnson - 2005 (188) ELT 467 (SC). It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voking the extended period of limitation would not arise and if the demands for the above period is excluded the net duty liability would be only about ₹ 23 lakhs approximately. In view of the above, the learned Counsel pleads for grant of stay. 4. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, contends that the appellant cannot plead ignorance of law inasmuch as in respect of the same product for which the same activities were undertaken in their Thane factory, the appellant had been clearing the same on payment of excise duty. Therefore, the appellant cannot take a different stand in respect of the same activity and in respect of the same product carried out in their godown at Bhiwandi. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5.1 As regards the appellant's contention that the activity undertaken by them does not amount to manufacture, we observe that in respect of the same activity undertaken in their factory at Thane on the same goods, the appellant is treating the activity as 'manufacture' and discharging excise duty liability thereon. Therefore, there is no reason why in respect of the same activity on the same product undertaken at their Bhiwandi godown, a different stand should be taken holding that the activity does not amount to 'manufacture'. The appellant cannot choose to discharge excise duty liability in some cases and not discharge duty liability in some other cases. Therefore, the claim of the appellant that the activity und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product by undertaking labeling and packing etc. would definitely amount to 'manufacture'. 5.2 As regards the question whether extended period of time could have been invoked in the present case, this is an issue which needs to be gone at length, which can be done at the time of final hearing of the appeal. The appellant has not pleaded any financial hardship nor any evidence has been produced in this regard before us. 5.3 In these circumstances, we are of the prima facie of the view that the appellant has not made out a prima facie case for complete waiver of the pre-deposit of dues adjudged against them. Accordingly, after taking into account the nature of product and revenue's interest, we direct the appellant to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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