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TMI Blog2018 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... r prepared dyes by mere mixing or stirring. 2.1 The appellant was under the bona fide belief that he was not liable to pay central excise duty and he had not been paying central excise duty on the said job work activity as was the case with several other screen printing units across the country. 2.2 The Revenue during its preventive visits came to a conclusion that since the appellant was using power for stirring of the printing paste as well as for lifting water to the overhead tank and for certain other processing activities, he was not entitled for exemption from excise duty under Notification No. 07/2003-CE dated 01.03.2003. 2.3 The show-cause notice dated 06.10.2005 was issued to the appellant. During adjudication, the appellant made submissions, inter alia, contending that they have not used power in the manufacturing process or use of power was so inconsequential or indirect or remote that it should not disentitle the appellant from exemption as was sought to be denied by the Revenue. In any case, the appellant also pleaded that while acting in the capacity of a job worker, the duty liability, if any, will be on the principal manufacturer on whose behalf the job work was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, the job worker shall not be required to get himself registered or shall be required to maintain any record evidencing the process undertaken unless he has exercised the option to this effect, in terms of the first or second proviso to sub-rule 1. 3.5 As stated earlier, the Appellant has never exercised such an option taking upon himself any of the obligations of the principal manufacturer nor it is the case of the Revenue nor the Revenue has any evidence to this effect. 3.6 The Appellant refers to and relied upon the following judgments in support of his claim that he being a job worker, should not be held liable to excise duty: (a) Mallika Saree Processing Vs. Commissioner of Central Excise, Bangalore 2006 (206) ELT 897 (Tri.-Bang.) (b) CCE vs. Diwan Saheb Fashions Pvt. Ltd. 2013 (289) ELT 113 (Del.) (c) NTC vs. CCE 2017 (351) ELT 333 (T) (d) NIC Vs. CCE 2017 (351) ELT 333 (T) 3.7 The appellant further submits that the demand in the present case is partially barred by limitation on account of there being no charge whatsoever in the entire show-cause notice about the wilful misstatement or suppression of facts on the part of the appellant. 3.8 In fact the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said person. (2) If the said person desires clearance of excisable goods for home consumption or for exports from the premises of the job worker, he shall pay duty on such excisable goods and prepare an invoice, in the manner referred to in Rules 8 and 11 respectively except for mentioning the date and time of removal of goods on such invoice. The original and the duplicate copy of the invoice so prepared shall be sent by him to the job worker from whose premises the excisable goods after completion of job work are intended to be cleared, before the goods are cleared from the premises of the job worker. The job worker shall fill up the particulars of date and time of removal of goods before the clearance of goods. After such clearance the job worker shall intimate to the said person, the date and time of clearance of goods for completion of the particulars by the said person in the triplicate copy of the invoice. (3) The said person may supply or cause to supply to a job worker, the following goods, namely, - (a) inputs in respect of which he may or may not have availed CENVAT credit in terms of the CENVAT Credit Rules, 2002, without reversal of the credit thereon; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the goods without payment of duty to another job worker; or (iii) clear the goods for home consumption or for exports subject to receipt of an invoice from the said person, as mentioned in sub-rule (2). The job worker shall clear the goods after filling in the time and date of removal and authenticating such details. The rate of duty on such goods shall be rate in force on date of removal of such goods from the premises of the job worker. No excisable goods shall be removed except under an invoice: Provided that the goods may be sent under a proforma invoice in terms of proviso to sub-rule (1) of rule 11. (8) The provisions of this rule, mutatis mutandis, be applicable to the goods in the nature of the waste, by-products or like goods arising during the course of manufacture of the goods mentioned in sub-rule (1). (9) Nothing contained in these rules shall apply to the goods sent from or to an export oriented unit or a unit located in a special economic zone. 6. On perusal of the above Rule 12B, it is clear that if the job worker obtain registration then only they are required to follow the provisions for payment of duty. It is optional for the job worker whether to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and textile article is not required to pay the duty. In the case of Mallika Saree Processing Vs. Commissioner of Central Excise, Bangalore 2006 (206) ELT 897 (Tri.-Bang.) (supra) Bangalore Bench of this Tribunal held as under:- "9. In the case of Shri Sai Vishnu Processing Co. demands have been confirmed on the process of calendering in addition to the process of decatising. We have already noted that demands on calendaring cannot be confirmed in view of the Tribunal ruling rendered in the case of Anand Calendaring Co. (supra) which refers to various judgments already noted supra. In effect, (a) We hold that the demands are barred by time. (b) That the process of decatising and process of blowing are one and the same and as blowing was exempted, therefore it follows that the process of decatising is also clearly exempted from levy of Excise duty. The Notification No. 47/02, dated 6-9-2002 is clarificatory in nature and hence it has got retrospective effect from 1-3-2002. (c) The process of calendaring is not a process of manufacture and no duty can be confirmed. The demands on the job workers from 1-3-2003 is not leviable as Rule 12(B) vide Notification No. 24/03-NT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is the manufacturer... So we are of the view that the Appellant had no obligation to pay excise duty on garments stitched out of fabrics bought or brought by the customers. Thus, the argument that in the case of textile goods got manufactured on job work basis during the period 2001-2004, the job worker has to discharge excise duty liability is not acceptable. Further if duty liability is determined as if the customer is the manufacture he should be eligible for exemption for SSI units also. But this issue need not be determined in this proceeding because the persons to pay duty are not before us." 10. The Tribunal, thus, held that the respondent (appellant before the Tribunal) was not liable to pay excise duty. The same, it held, shall be determined as if the customers were the manufacturers, and that they may be eligible for SSI (small scale industry) exemption. The Court does not discern any fault in the reasoning of the Tribunal. The relevant expression in Section 7AA and its successor rules is person who gets the goods produced or manufactured on his account on job work . In the present case, the customers supply the already purchased fabric to the respondents for stitchi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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