TMI Blog2013 (9) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsibility of the Revenue, the appellant has made out a strong case in their favour for grant of stay - Stay granted. - E/88045-88046/2013 - Stay Order Nos. S/1141-1142/2013-WZB/C-II(EB) - Dated:- 23-9-2013 - Shri P.R. Chandrasekharan, Member (T) and Anil Choudhary, Member (J) Shri S.P. Mathew, Advocate, for the Appellant. Shri Navneet, Addl. Commissioner (AR), for the Respondent. ORDER The appeal and stay petition are directed against Order-in-Original No. 09/NG/COMMR/Th-II/2013, dated 7-5-2013 passed by the Commissioner of Central Excise, Thane-II. 2. This matter had come up for hearing earlier and in the earlier round, vide Order Nos. A/293-295/2012/EB/C-II, dated 11-4-2012 the matter was remanded back to the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the copper wires. We also find that as per the Chapter Note 10 of the Section 15 of the Central Excise Tariff this activity amounts to manufacture. However, the Panchanama in respect of the goods seized has mentioned the seizure of copper rods as finished goods whereas the copper wire are shown as inputs which is in contradiction of the finding that the appellants are engaged in the manufacture of wires from rods. This aspect needs re-verification at the Commissioner level. 6. The another aspect is whether drawing of copper flats into patta/patti amounts to manufacture or not. The Commissioner in paras 80 82 has held that copper patta/patties are distinct commodity from the copper flat and, therefore, drawing of flat into patta/patti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or products of other headings . We find that when the flat is drawn into patta/patti (which is a local name) the product does not assume the character of articles or product of other headings as the patta/patti continue to fall under Heading 7409 (under which the flats before drawing are classifiable). Though, the patta/patti have been given the name distinct from the flat whether they assume the character of articles of other heading is not clearly coming from the findings of the Commissioner. We are therefore of the view that in respect of drawing of flats into patta/patti, the Commissioner should give his finding whether the products assume the character of articles of other headings. If so what would be their different heading number. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of our observations. We are not expressing any opinion on merit. In pursuance thereof, the impugned order has been passed. 3. The issue is whether conversion of copper hot rolled coils into copper flats also known as patta/patti would amount to manufacture . This was the issue remanded back for consideration by the adjudicating authority. The adjudicating authority, in the impugned order has come to the following conclusions : I find that Heading 7409 of the Central Excise Tariff covers copper plates, sheets and strip of a thickness exceeding 0.15 mm; in coils or otherwise. This is the only entry available under Chapter 74 wherein all types of copper plates, sheets and strip, irrespective of its length, width and thickness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e copper patta and patti have a different use than the copper flat. Copper flats and copper patta/patti are two different and distinct commodities and it is marketable as such. In view of the foregoing I come to the conclusion that the process redrawing of Copper Patta/Patti from Copper flats carried out by the assessee amounts to manufacture even though copper flats and copper patta/patti is classifiable under the same Tariff heading. 5. On this basis, he has come to the conclusion that the activity undertaken by the appellant amounts to manufacture and accordingly he has confirmed a demand of ₹ 1,11,54,688/- along with interest thereon and also imposed equivalent amount of penalty on the main appellant M/s. Radiant Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, the Hon ble Apex Court further held that the burden is on the department to prove that the process of manufacture has resulted in emergence of a commercially distinct commodity and this burden cast on the department has not been discharged in the present case at all. 6.1 As regards the demand of duty on copper wires drawn from copper wire rods, as per Note 10 to Chapter 74 this has been deemed to be as a process of manufacture . However, the turnover in respect of wires manufactured by the appellant during the impugned period is only ₹ 30,09,000/- and the appellant would be eligible for the benefit of small scale exemption with respect to this product. In any case, he submits that the appellant has made a pre-deposit of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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