TMI Blog2018 (6) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of extended time limit. Appeal dismissed - decided against appellant. - Appeal No. E/50939-50940/2017-DB - Final Order No. 52243-52244/2018 - Dated:- 18-6-2018 - Hon ble Mr. V. Padmanabhan, Member ( Technical ) And Hon ble Ms. Rachna Gupta, Member ( Judicial ) Sh. Amit Jain, Advocate for the appellant Sh. R. K. Majhi, DR for the respondent ORDER Per : V. Padmanabhan The present appeals are filed against the Order-in-Original No. 30- 31/2016-17 dated 01/03/2017. 2. The brief facts of the case are that the appellant is engaged in making various types of tissue papers, C-fold tissue, M-fold tissue, paper napkin/serviette of different sizes, toilet roll, kitchen roll, JRT roll and HRT roll etc. out of jumbo rolls of paper. The jumbo roll of paper is attached to the paper napkin machine, set in the required size and then embossing of design, cutting, slitting, and folding are undertaken using the machine. Thereafter, the cut to size products are packed manually in polythene (printed with PROTUS brand.) and finally into big cartons, i.e. corrugated boxes and sold. 3. Show Cause Notice dated 8.4.1016 was issued, alleging that out of the various pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not attract levy of excise duty under the first principle of manufacture. 5.2 It is submitted that the issue arising in the present case stands decided in favour of the appellant by the judgment of Hon ble Supreme Court in the case of CCE, New Delhi vs. S.R. Tissues Pvt.Ltd., 2005(186)E.L.T. 385(S.C.)which was also recently followed by the Hon ble Madras High Court in the case of Fresh Papiers India Pvt. Ltd. vs. CCE, 2017(347) E.L.T. 604 (Mad) Reliance in this regard is also placed on the following decisions: Servo-Med Industries Pvt Ltd v CCE, 2015 (319) E.L.T578 (S.C), Maj, Gen, Gurdev Singh, Director v. CCE, 2016 (337) E.L.T. 393(Tri-Del. ) CCE, Chandigarh v. Dabur Ltd.,2015(325) E.L.T. 63 (Tri- Del.) In the light of the aforesaid judicial pronouncements, it is submitted that since no new product commercially known to the market emerges as a result of the process undertaken by the appellant, it does not satisfy the test of manufacture and hence not liable to excise duty. Therefore, the demand raised against the appellant is unsustainable and is liable to be set aside. 5.3 In para 4.4 and 4.5 of the impugned order, the Ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion packing is considered as package containing a pre-packed commodity where the quantity of product contained therein is pre-determined and packing is generally done without the presence of purchaser and the package contains information such as name of the manufacture, quantity, value and other details of the products. Thus, labelling means declaration of name of the manufacturer, quantify, value and other details of the product. 5.7 Unlike the earlier two parts which specify the activity covered, viz., packing or repacking, labelling or re-labelling, the last part of the definition does not specify the activities to be covered under this part. It only says, adoption of any other treatment on the goods to render the product marketable to the consumer . Therefore, the words any other treatment indicates that these activities should be other than the activities specified in the earlier part of the definition. Further, to render the goods marketable means that the goods were not marketable earlier and have become marketable because of the process undertaken/treatment given by the assessee. Hence, for a process to fall within the scope of the said expression, the same must c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cleaning or facial tissues, handkerchiefs and towels, of paper pulp, paper, cellulose wadding or webs of cellulose fibres, other than goods falling under 48 18 50 0 35 5.10 It is submitted that first part of Heading 4818(reproduced above) covers the item, Toilet paper and similar papers, of a kind used for household or sanitary purpose, in rolls of a width not exceeding 36 cm, or cut to size or shape. The second part of the heading covers handkerchiefs, cleansing tissues, towels, tables cloths etc. The C-fold and M-fold towels are used in the washrooms/kitchen, in combination with a dispenser, for wiping of hands. These are therefore, in the nature of toilet paper and similar paper, hence, classifiable under Tariff Item 4818 10 00 as Toilet Paper or under 4818 90 00 as Other , thus, outside the ambit of Entry 55 of the Third Schedule. 5.11 Tariff item 4818 20 00, under which the goods in question have been classified, covers Cleaning or facial tissues whereas Entry 55 in the Third Schedule to the Excise Act, as well as Entry 55 in Notification No. 49/2008-CE(NT) dated 24.12.2008, cover the goods of description cleansing or faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture, there has to be first a transformation in the original article and this transformation should bring about a distinctive or different use in article Since the activity undertaken by the appellant brings about such a transformation, he justified the levy of Excise duty. 7. We have heard both sides and perused the record. 8. The basic issue in the present case is whether the activity carried out by the appellant in their factory amounts to manufacture. The Adjudicating Authority has held that the process carried out would amount to manufacture and hence Central Excise duty is payable on the resultant products. In the appellant s factory there are various types of machinery. The raw materials procured are essentially in the form of paper jumbo rolls. Such jumbo rolls are slit to the required size, cut to size and embossed and printed with the brand name and design. In respect of toilet roll, kitchen roll etc they are rewound into smaller rolls. In respect of paper napkins and C and M Fold Towels, they are folded as required. Finally, the goods are packed in polythene and finally into big cartons i.e. corrugated boxes embossed with the brand PROTUS . The resultant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 extremely small duration. In these cases also no manufacture of goods takes place. (4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place. 11. The Apex Court held that the goods can be considered to be manufactured only in the situation described in four above i.e. In cases where goods are transformed into goods which are different and /or new after a particular process, such goods been marketable as such. To decide the question of manufacture in the facts of the present case, we need to examine the processes as to whether the test specified in above is satisfied. 12. The raw materials procured by the appellant are in the form of jumbo rolls. Such jumbo rolls cannot be conveniently and efficiently used either as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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