TMI Blog2006 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... f product called Insta whitening system under the brand name "Ujala Supreme". The classification of the product was the subject matter of dispute between the Revenue and the party and there is a favourable order in the assessee's favour in their own case as reported in 1994 (50) ECR 36 (Tribunal). The Tribunal in this detailed majority order held that the process of manufacture carried on by the appellants does, not bring into existence new product and the product which has been emerged is not excisable and dutiable. The Tribunal had considered all the evidence on record including the test of marketability and excisability. Ibis judgment has been accepted by the Revenue and not appealed by the Revenue. In the present case, this judgment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner has reiterated his view that the Tribunal's order in the assessee's case cited supra is not correct in law. The submissions made in Paragraph D3 to D4 and D5 to D10 are reproduced herein below:- Para D3 toD4 It has been held in the division of the Hon'ble Tribunal 1997 (90) ELT 411, that all the ingredients for conversion of a product (claimed as formulated, standardized and prepared) were present with the addition of diluents by which the product becomes formulated standardized and prepared and the process was held to be the process of manufacture as per Chapter Note 6 of Chapter 32. In the assessee's own case reported in 1994 (50) ECR 36 (T) it was held that in terms of Chapter Note 6 to Chapter 32 when applied to the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it cannot be said that a process of manufacture as envisaged in the chapter note has taken place and hence it is to be concluded that no process of manufacture has taken place at the hands of the appellant". (Para of the judgment refers) It is thus seen that while the two members had just opposing views, the view of the third member is entirely different as it is based on chapter note 6 of chapter 32. This view has been overruled by the later decision of CEGAT. As already discussed in the previous paras, the principles of res judicata is not applicable here and hence department has every right to recover the duty." 2. The learned DR prays for taking a different view from the view already expressed by the Tribunal and submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee's favour. We find that the duty paid inputs when mixed together do not bring into existence, any new product. The appellants had marketed the product under the brand name "Ujala Supreme". The Chemical Test Report was taken into consideration besides the judgments of the Tribunal, the High Court and the Supreme Court The Tribunal's order is lengthy and a detailed one. This order was not appealed by the Revenue and the same was accepted as noted supra. The Commissioners of Bhubaneshwar, Chennai, Trichirapalli and Bolpur has initiated proceedings on the ground that the impugned product is different one and dutiable. They passed the Orders-in-Original No. CCE/BBSR-1/25/2001 dated 27.9.2001; 1 2/2002 dated 31.1.2002; 25/2002 dated 28.7.2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Others Vs. Kaurnudini Narayan Dalal Another reported in 2001 (10) SCC 231; Collector of Central Excise, Pune Vs. Tata Engineering Locomotives Co. Ltd. reported in 2003 (158) ELT 130 (S.C.); Birla Corporation Ltd. Vs. Commissioner of Central Excise reported in 2005 (186) ELT 266 (S.C.); and Jayaswals Neco Ltd. Vs. Commissioner of Central Excise, Nagpur reported in 2006 (195) ELT 142 (S.C.) wherein it has been held that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd. (supra), this Court observed as follows: "In the instant case the same qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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