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2015 (6) TMI 334 - CESTAT NEW DELHI

2015 (6) TMI 334 - CESTAT NEW DELHI - 2015 (326) E.L.T. 189 (Tri. - Del.) - Manufacturing activity or not - whether making pencil slats from wooden logs (timber) would amount to manufacture and whether such pencil slats would attract Central Excise duty - Exemption Notification No. 56/02-CE dated 14/11/02 - Held that:- Timber logs are cut into blocks, which are further cut into smaller blocks and, thereafter, these smaller blocks are subjected to the process of boiling to soften the wood and it .....

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From the manufacturing process described in the appeal memo and also in the order of the Assistant Commissioner it is clear that there is transformation of timber block into a new commodity in course of making of pencil slats from timber logs/wood blocks in as much as (a) boiling of wooden blocks results in certain changes in the wood which makes it soft and (b) subjecting the un-stained slats to pressure at high temperature in the pressure vessel and treating them with certain chemicals .....

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stoms organisation and it harmonises customs and trade procedure and thus reduces the cost relating to international trade.

Moreover when the manufacturing units of both the appellants were located in the areas notified under Notification 56/02-CE and HPPL was in fact availing of this exemption, there would be absolutely no incentive, in fact, negative incentive, for them to avoid the payment of duty, as (a) as per the scheme of Notification 56/02-CE, whatever duty is payable through .....

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dency of the units availing of exemption under Notification No. 56/02-CE would be to pay as much duty as possible rather than avoid the payment of duty. In view of this position, we hold that in both the cases, the appellants cannot be accused suppressing of any material fact from the Department with intent to evade the duty.

Only the normal limitation period would be available to the Department for recovery of duty and for the same reason, no penalty under Section 11AC of Central Ex .....

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process undertaken by them does not amount to manufacture, they stopped payment of duty, if they claim the exemption under Notification No. 56/02-CE, the same would have to be allowed. - Decided partly in favour of assessee. - Excise Appeal No. 1854 to 1856 of 2012 , Excise Appeal No. 60625 of 2013 , Excise Appeal No. 1891 of 2012 , Excise Appeal No. 1892 of 2012 , Excise Appeal No. 52106 of 2014 - Final Order No. 51725-51731/2015 - Dated:- 27-5-2015 - Hon ble Shri Rakesh Kumar, Member (Technic .....

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cause notice Amount of duty confirmed (Rs.) Penalty imposed (Rs.) 1. Hindustan Pencils (P) Ltd. E/1854/2012 November 2009 to August 2010 09/12/2009 7,24,736/-alongwith interest under Section 11AB Nil 2. Hindustan Pencils (P) Ltd. E/1855/2012 July 2009 to October 2009 29/07/2010 27,61,143/- alongwith interest under Section 11AB Nil 3. Hindustan Pencils (P) Ltd. E/1856/2012 September 2010 to July 2011 03/10/2011 99,55,580/- alongwith interest under Section 11AB ₹ 10 lakhs 4. Hindustan Penci .....

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50,623/- alongwith interest under Section 11AB ₹ 25,000/- The penalties in these cases have been imposed under Rule 25 of the Central Excise Rules, 2002. 1.1 The facts leading to filing of appeals by M/s Hindustan Pencils (P) Ltd. (hereinafter referred to as HPPL) are, in brief, as under. 1.1.1 HPPL in their factory at SIDCO Industrial Complex, Samirpur Road, Bari Brahamna, Jammu, manufacture pencil slats which are specifically covered by Tariff heading 44219040 of the Central Excise Tarif .....

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the Central Excise Tariff Act, 1985 and Additional Duty of Excise leviable under the Additional Duties of Excise leviable under the Additional Duties of Excise, (Goods of Special Importance) Act, 1957 [AED (GSI)] and Additional Duty of Excise (Textile and Textile Article) Act, 1978 [AED (T&TA)], which is other than the duty paid in respect of clearances made during a month by the utilisation of Cenvat credit available at the end of the month to the extent possible. According to the scheme o .....

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taken as self-credit in the Assessee s PLA to be verified by the Jurisdictional Assistant Commissioner subsequently or by making application to the Assistant Commissioner and taking the credit in PLA after sanction of the refund by the Assistant Commissioner. This exemption notification was applicable, among other units, to the new industrial units which have commenced their commercial production on or after 14th day of June, 2002. It appears that HPPL had opted for this exemption and had filed .....

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tion of exemption under Notification No. 56/02-CE would not arise. The Assistant Commissioner in para 7 of the order described the process of making wooden pencil slats starting from the timber logs and thereafter relying upon two judgments of Hon ble Kerala High Court in the cases of Deputy Commissioner vs. B. Thampan reported in (1995) 96 STC 631 (Ker D.B.) and Deputy Commissioner vs. N. Janardanan reported in (1995) 96 STC 632 (Ker D.B.) held that the process being undertaken by HPPL does not .....

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y HPPL, but this time the Department took the view that the process being undertaken by the appellant amounts to manufacture in as much as it results emerges of a new commercial product having a different name, character and uses distinct from its raw material and the same being covered by heading 44219040 would attract Central Excise Duty. Accordingly, a show cause notice dated 09/12/10 was issued to HPPL for demand of Central Excise duty of ₹ 7,24,736/- from HPPL alongwith interest. This .....

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tion 11AB. The appeal No. 1854/2012 has been filed against this order of the Commissioner. 1.1.3 Subsequently, show cause notices dated 29/7/10 for the period from July 2009 to October 2009, dated 03/10/11 for the period from September 2010 to July, 2011 and dated 28/8/12 for the period from August 2011 to May 2012 issued to HPPL for demand of duty amounting to ₹ 27,61,143/-, ₹ 99,55,980/- and ₹ 1,45,12,731/- respectively alongwith interest and also for imposition of penalty. T .....

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bonafide belief that their product is excisable, they had paid duty on the clearances of pencil slats upto 31st July 2006. However, according to them, in August 2006 they were informed by the office of Assistant Commissioner, Central Excise, Jammu that pencil slats were not dutiable. SWPL under their letter dated 21/08/06 addressed to the Assistant Commissioner referring to the Department s advice that their product is not dutiable, informed that they are stopping the payment of duty on clearan .....

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District Industry Centre for necessary certificate nor did they avail of this exemption. In the case of this appellant also, the Department issued a show cause notice dated 03/10/10 for demand of duty amounting to ₹ 1,11,92,925/- for the period from October 2009 to August 2010 alongwith interest on it under Section 11AB and also for imposition of penalty. Subsequently another show cause notice dated 03/10/11 was issued for demand of duty amounting to ₹ 2,05,36,239/- for the period fr .....

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tioned above and by these orders the duty demands as made in the show cause notices, were confirmed alongwith interest and beside this, penalties were also imposed. Against these three orders of the Commissioner, the appeal No. E/1891/2012 and E/1892/2012 and No. E/52106/2014 have been filed. 2. Heard both the sides. 3. Shri D.B. Shroff, Senior Advocate and Shri Sushil Singh, Advocate, the learned Counsels for the appellant, pleaded that in both the cases initially the appellant were paying duty .....

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tification No. 56/02-CE by taking the view that the process undertaken by the appellant does not amount to manufacture and in this regard he had relied upon two judgments of Hon ble Kerala High Court in the cases of Deputy Commissioner vs. B. Thampan reported in (1995) 96 STC 631 (Ker D.B.) and Deputy Commissioner vs. N. Janardanan reported in (1995) 96 STC 632 (Ker D.B.) wherein Hon ble Kerala High Court held that converting soft wood into pencil slats no new commodity emerges and does not amou .....

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en a decision after studying the process that the same does not amount to manufacture, the Department just on the basis of decision of the Tribunal in the case of Lion Pencil Pvt. Ltd. vs. CCE, Bombay reported in 1996 (87) E.L.T. 314 (Tri.) cannot reverse its stand, that in this judgment, the Tribunal had not considered the judgments of the Hon ble Kerala High Court in the cases of Deputy Commissioner vs. B. Thampan reported in (1995) 96 STC 631 (Ker DB) and Deputy Commissioner vs. N. Janardanan .....

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ts stand by the principle of res-judicata, that in this regard he relies upon the judgment of the Tribunal in the case of CCE, Bangalore vs. AVRA & Co. Bangalore reported in 1987 (31) E.L.T. 238 (Tri.) and also of the Apex court in the case of CCE, Nagpur vs. Shree Baidhanath Ayurved Bhawan Ltd. reported in 2009 (237) E.L.T. 225 (S.C.), that making of wooden slats involves cutting of the timber logs into blocks which are further cut into smaller blocks, that the smaller blocks are then boile .....

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ith distinct name, character and uses emerges, that just because pencil slats are covered by sub-heading 44219040, it does not mean that the same would be excisable, as for this purpose, the Department has to produce the evidence to show that the same are the result of manufacture and are marketable, that in this regard he relies upon the Apex court s judgment in the case of CCE, Hyderabad II vs. Aldec Corporation reported in 2005 (188) E.L.T. 241 (S.C.), that no evidence has been led by the Dep .....

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ber logs remain timber and their boiling to soften the same and heat and pressure treatment is only to enable the absorption of colouring material and anti termite chemicals for preserving the wood and as such basic character and uses do not change and no new product having distinct, commercial identity and uses emerges, that the process undertaken by the appellant in this case does not pass the test of manufacture as laid down by the Apex court in the case of Union of India vs. Delhi Cloth & .....

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hem that the process being manufactured by them does not amount to manufacture, that this fact is absolutely clear from para 9 of the order-in-original dated 13/11/06 passed by the Assistant Commissioner in the case of HPPL, wherein the Assistant Commissioner has observed that the manufacturing process of the product, in question, has been studied by the Headquarters Preventive Central Excise Commissionerate, Jammu & Kashmir and on this basis, the Assistant Commissioner (Preventive) has inti .....

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ls slats only on the instructions of the Department and it is subsequently the Department which had changed its stand, there is absolutely no justification for imposition of penalty on the appellants. Shri Shroff, therefore, pleaded that in view of the above submissions, the impugned orders are not correct. 4. Shri Pramod Kumar, the learned Jt. CDR, defended the impugned orders by reiterating the findings of the Commissioner. With regard to the principle of res-judicata, Shri Pramod Kumar pleade .....

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on of pencil slats in HSN indicates that this product is traded across the world and, therefore, is marketable. He, pleaded that the appellant are not only cutting the wooden blocks into slats but are also subjecting the same to boiling to soften the wood and thereafter are processing the same in pressure vessels and treating with chemicals and therefore the pencil slats which emerges as a result of these processes are a commodity distinct and different from the timber logs and have distinct nam .....

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h Court s judgment in the case of Deputy Commissioner vs. B. Thampan reported in (1995) 96 STC 631 (Ker. D.B.) and Deputy Commissioner vs. N. Janardanan reported in (1995) 96 STC 632 (Ker. D.B.) being with regard to the sales tax are not applicable and as such the decision relating to sales tax matter does not has any precedence value in Central Excise matters. Shri Pramod Kumar in his written submissions also enclosed a list of a few vendors offering pencil slates for sale which had been down-l .....

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to heat treatment with the aid of steam at 80?centigrade and pressure ranging from 150 to 175 PSI with a view to penetrate the colouring matter into crevices and this process results in softening of the wood and removal of natural resins. He pleaded that the Tribunal s judgment in the case of Paharpur Cooling Towers P. Ltd. vs. CCE reported in 1988 (36) E.L.T. 364 (Tri.) relied upon by the learned Counsel for the appellant is not applicable to the facts of this case. With regard to limitation, .....

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ber) would amount to manufacture and whether such pencil slats would attract Central Excise duty. The pencil slats are specifically covered by sub-heading 44219019 of the Central Excise Tariff. In this regard the main heading 4421 covers other articles of wood . The sub-heading 442110 covers cloth hangers of wood the other sub-heading 442190 covers other articles of wood other than cloth hangers and against sub-heading 44219040 the entry is pencil slats . The heading 4421 of the Central Excise T .....

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(timber) which is cut into blocks and blocks are further cut into smaller blocks. The smaller blocks are then boiled in order to soften the wood so that the same can be sliced easily into thin slats. The slats are thereafter naturally dried. These rectangular pieces of wood are called un-stained slats. The un-stained slats are, thereafter, fed into pressure vessel where the same are subjected to pressure at high temperature and are treated with anti-termite chemicals and colouring material. The .....

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lanning to avail of this exemption by undertaking substantial expansion by increased in their installed capacity by more than 25%, but at the point of time when the dispute arose, they were not yet started for availing of this exemption. In both the cases, the Department informed the appellants that their product pencil slat is not excisable and they stopped the payment of duty. At that time, the Department had relied upon the judgment of Hon ble Kerala High Court in the case of Deputy Commissio .....

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uestion as to whether purchase tax under Section 5A of the Kerala Sales Tax Act on the soft timber purchased for converting the same into pencil slats would be leviable on the purchase value of timber converted into pencil slats, held that pencil slats are nothing else but timber cut into small pieces of plank and levy of tax under Section 5A on the purchase value of timber converted into pencil slats is not permissible. On appeal being filed by the Kerala Government to Kerala High Court against .....

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hat Section 5A of Kerala General Sales Tax Act is not attracted. High Court accordingly held that the appellate tribunal is justified in its decision and there is no error of law. In the other case of Deputy Commissioner vs. N. Janardanan reported in (1995) 96 STC 632 (Ker D.B.), Hon ble Kerala High Court followed its earlier decision in the case of Deputy Commissioner vs. B. Thampan reported in (1995) 96 STC 631 (Ker D.B.) and affirmed the Kerala Sales Tax Tribunal s order that no new commodity .....

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s case also the question before the Tribunal was as to whether converting timber into stained pencil slats amounts to manufacture. The Tribunal in this judgment after taking into consideration the process involved in making seasoned (stained) pencil slats from timber held that the process amounts to manufacture. In this regard the finding of the Tribunal in para 6 of the order are as under :- 6. Heard the submissions of both sides. We find that? timber slats were subjected to heat treatment with .....

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temperature of 80oC and pressure of 150 to 175 PSI unless they are treated. This clearly provided timber slats with different properties as this high temperature in the process provided timber slats a character of penetration of colouring material. Further we also find that treatment of softening the product and removal of natural resins from the timber slats, provided the product distinct quality with definite character and use. The ld. Counsel submitted at this stage that no evidence has been .....

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hat case or discussed in that case. We therefore, hold that the facts in the two cases are different and therefore, the case decided by the Apex Court is clearly distinguishable. In view of the fact that the processes undertaken in converting the timber slats into seasoned timber suitable for manufacture of pencils, we hold that the processes brought into existence a new product and therefore, can be treated as a process of manufacture or processes undertaken amount to manufacture. In the result .....

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nd Deputy Commissioner vs. N. Janardanan reported in (1995) 96 STC 632 (Ker D.B.) and also going through the judgment of Tribunal in the case of Lion Pencils Pvt. Ltd. vs. CCE, Bombay (supra) we are of the view that above-mentioned judgments of Hon ble Kerala High Court, are in respect of the pencil slats obtained simply by cutting certain types of softwood blocks into small pieces of planks and the same would not be applicable to the facts of this case, as in the present case, undisputedly, the .....

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d slats while the slats obtained by slicing the boiled wooden blocks are called un-stain slats. There is no dispute that these slats are meant only for manufacture of pencils. The question is as to whether this process would amount to manufacture. 11. In terms of the Apex court s judgment in the case of Union of India vs. Delhi Cloth & General Mills reported in 1977 (1) E.L.T. J (199) (SC) (para 14) while manufacture implies a change, but every change is not manufacture and yet every change .....

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there must be manufacture in the sense that by the process to which some raw material has been subjected, a new and different article having a distinct name, character and uses has emerged and that article is goods in the sense that it is marketable, it is something which can ordinarily come to the market to be bought and sold. Thus, manufacture for the purpose of levy of Central Excise can be said to be a process by which a new article with a new commercial identity has emerged having a differ .....

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to existence and the identity of the original commodity ceases to exist and secondly whether the commodity which was already in existence will serve no purpose but for the said process or in other words whether the commodity already in existence would be of no commercial use but for said process. It is on the basis of this criteria that the Apex court held that printing/painting of plain glass bottles would not amount to manufacture. The Apex court in a recent judgment in the case of Servo-Med I .....

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tially the same after the particular process, again there can be no manufacture. This is for the reason that the original article continues as such despite the said process and the changes brought about by the said process. (3) Where the goods are transformed into something different and/or new after a particular process, but the said goods are not marketable. Examples within this group are the Brakes India case and cases where the transformation of goods having a shelf life which is of extremel .....

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from timber logs amounts to manufacture has to be examined on the basis of the criteria prescribed in the above-mentioned judgments of the Apex court. 13. From the manufacturing process described in the appeal memo and also in the order of the Assistant Commissioner it is clear that there is transformation of timber block into a new commodity in course of making of pencil slats from timber logs/wood blocks in as much as (a) boiling of wooden blocks results in certain changes in the wood which m .....

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m, generally referred to as harmonised system of nomenclature (HSN), is a multi purpose international product nomenclature developed by the world customs organisation and it harmonises customs and trade procedure and thus reduces the cost relating to international trade. The HSN covers all the commodities which are traded cross the world and, therefore, in our view, if a product is specifically mentioned in the HSN, it would imply that it is a marketable product which is traded across the world. .....

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industry in Kerala. This article is reproduced below:- Pencil Slat Industry Paints a Bleak Picture KOLLAM : The Pencil slat manufacturing industry in Kollam had survived many challenges over the years to keep its numero uno status in the country. However, the challenge of finding skilled labour is now crippling the industry in the state. The district produces the largest number of slats used for making pencils in the country. At present, around 3,000 people are employed in as many as 150 slat u .....

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investments. In fact, most units will not survive for more than two years, said C Sreejith, owner of Kailas slat manufacturing unit at Chathannoor. Slats produced in the state have been recognised by pencil manufacturers in and outside the country. But, according to the slat manufacturers, such recognitions seldom translate into money. Shortage of raw materials and high prices are the perennial challenges being faced the industry. The cost of raw materials has increased with the ban on selection .....

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sliced into rectangular pieces of 185 mm length, 80 mm breadth, and 6 mm thickness and are sun dried. As many as 900 such pieces form a bundle which is then transported to various pencil manufacturers across the globe. A bundle fetch them ₹ 1,400 and an average of 300-400 bundles are transported from each such units in Kollam. The pencil slats from Kollam are of high demand in places including, Pollachi, Jammu and Mumbai. Pencil slat consignments are also transported to pencil factories ba .....

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t with different and distinct commercial identity from its raw material and different character and uses emerges, the process undertaken by the appellants has to be treated as manufacture. 14. Another plea of the appellant is that since earlier the Department in the case of HPPL had decided that the process undertaken by them does not amount to manufacture, the Department in view of the principle of res-judicata cannot revise its stand and hold that the process undertaken by them would amount to .....

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n 1988 (38) E.L.T. 571 (S.C.), wherein the Apex court has held that the Central Excise authorities are not estopped from taking a view different than in the classification list as there is estopped against the law. This judgment of the Apex court is the background of the fact that earlier the Jurisdictional Assistant Commissioner had approved the classification list by accepting the classification claimed by the assessee and subsequently on finding that the earlier decision was wrong, the Depart .....

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appellant SWPL were planning to avail of this exemption, as according to them they had undertaken substantial expansion by the way of more than 25% increase in their installed capacity and for availing of the exemption Notification No. 56/02-CE they were waiting for the certificate from the District Industry Centre, but in the meantime the Central Excise authorities advised them that the process undertaken by them does not amount to manufacture and that they are not required to pay any duty. In .....

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Headquarters were intimated to the Divisional Office informing that the activity being carried out by HPPL cannot be termed as manufacture in terms of Central Excise law. In case of SWPL also, they were informed by the Central Excise authorities that the process undertaken by them does not amount to manufacture. Moreover when the manufacturing units of both the appellants were located in the areas notified under Notification 56/02-CE and HPPL was in fact availing of this exemption, there would b .....

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