TMI Blog2007 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... rther operations like repacking, labelling/relabelling etc. These goods are outside the purview of the present dispute. The dispute relates to the goods imported in bulk. These bulk packs contained assorted garments each bearing the brand name "CONYBIO". The appellants, after clearing the goods on payment of applicable duties of Customs, repacked them in old-and-used cartons. In each carton, such number of printed packing material (flattened cartons/boxes) as equal to the number of garments were also packed along with such garments. Each printed packing material (pro cured indigenously) would carry the appellants' name and address, brand name (CONYBIO) and logo, M.R.P of the product to be packed, specifications of the product etc., printed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty (Rs.1.6 crores) on the party under the Central Excise Rules. This decision of the Commissioner is under challenge in appeal No. E/471/2006. 2. After examining the records and hearing both sides, we note that the basic issue is whether the activity undertaken by the appellants subsequent to customs-clearance of the bulk imports amounted to "manufacture" in terms of Note 4 to Chapters 61 and 62 of the Schedule to the Central Excise Tariff Act. This Chapter Note reads as follows: "In relation to a product of this Chapter, affixing a brand name on the product, labelling or relabelling of its containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected by the Commissioner. The claim of CENVAT credit of CVD was also rejected. 3. After considering the submissions of both sides, we have not found enough reason to support the finding recorded by ld. Commissioner that the activity undertaken by the appellants amounted to "manufacture" in terms of Chapter Note 4. The language used in the Chapter Note clearly indicates that repacking from bulk pack to retail packs would not, by itself, amount "manufacture". Besides repacking from bulk pack to retail packs, there must be labelling/re-labelling or the affixing of a brand name also. In the impugned orders, it appears, ld. Commissioner has not found both the ingredients to be cumulatively present in this case. Fie has not spelt out "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nson) we hold that, in the activity in question, there was no repacking from bulk pack to retail pack rendering the product marketable directly to the consumer and, therefore, applicability of Chapter Note 4 is ruled out. We have also found a valid point in the contention of the appellants' counsel that the adjudicating authority erred in applying the Chapter Note without examining the question whether there was any labelling or relabelling on the cartons in which the goods were cleared by the appellants. Ld. Counsel has rightly found support from the decision of this Bench in Ruchi Health Foods Ltd. case also. 4. Ld. SDR has referred to two decisions of the Tribunal viz. Mercantile company v. C.C.E. Kolkata , 2001 (134) E.L.T. 277 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the fiction of "manufacture" introduced in Chapters 28, 29 etc., that the question whether or not duty was liable to be paid depends upon the facts of individual case and a decision thereon had to be taken after considering all relevant facts. There can be no quarrel with the view expressed by the Board. But it cannot in any manner go to support the Revenue's case. 6. For the reasons already recorded, we have to reject finding that the appellants had undertaken "manufacture" in terms of Chapter Note 4 ibid in marketing the goods imported in bulk. In the result, the impugned orders are set aside and these appeals are allowed. (Operative part of the order was pronounced in open Court on 10-8-2007) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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