TMI Blog2018 (8) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation - Held that:- There were catena of judgments on the same set of facts moreover, on the same activities and same product, therefore, the matter involved is pure interpretation of law - Extended period cannot be invoked. Appeal allowed - decided in favor of appellant. - Appeal No.E/10715-10718,10813-10815,11004/2015-DB - Final Order No. A / 11571-11578 /2018 - Dated:- 30-7-2018 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. RAJU, MEMBER (TECHNICAL) For Appellant : Mr. Jitendra Motwani (Advocate) For Respondent : Mr. J. Nagori (AR) ORDER Per : Ramesh Nair The brief facts of the case are that the appellant are engaged in the processing of printing of bought out PVC sheet falling under Chapter 39 of Central Excise Tariff Act, 1984. After investigation, the department issued periodical SCNs contending that the printing of PVC sheet is amount to manufacture and appellants are liable to pay duty. All the SCNs culminated into adjudication orders whereby demand of Central Excise duty on the activity of printing of PVC sheet has been confirmed, the penalty under Rule 25 was imposed and penalty on the Director of the appellant com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod. He submits that the issue is purely a question of law that whether the activity amounts to manufacture or otherwise, there were litigation on this issue in the various cases including the land mark case of Caprihans India Ltd. (supra), the Hon ble Supreme Court also stayed the order of the Tribunal and subsequently the Tribunal order was set aside. In these process of litigation it cannot be said that the appellant had malafide intention to evade payment of duty. Therefore, the extended period was not invokable. In support of his submission, he placed reliance on the following judgments: CCE Thane cs Caprihans India Ltd. 2005 (181) ELT 77 (Tri. Mum) CCE Aurangabad vs Caprihans India Ltd. 2006 (195) ELT 240 (Tri-Mum) Caprihans India Ltd. vs Commissioner 2008 (229) ELT A28 (S.C.) Caprihans India Ltd. vs Commissioner of C. Ex. , Surat-II 2006 (205) ELt 175 (Tri-Mum) Caprihans India Ltd. vs Commissioner 2007 (208) ELT A117 (SC) Caprihans India Ltd. vs Commissioner of Central Excise Surat-II 2007 (207) ELT 284 (Tri-Mum) Caprihans India Ltd. vs Commissioner 2010 (255) ELT A44(SC) Caprihans India Ltd. vs Commissioner of C.Ex. 2015 (11) TMI 1170- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri) Caprihans India Ltd. vs Commissioner 2006 (197) ELT A121 (SC) Metagraphs Pvt. Ltd. vs CCE Bombay 1996 (88) ELT 630 (SC) Laminated Packings (P) Ltd. vs CCE 1990 (49) ELT 326 (SC) 4. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute regarding that facts of the case between the Revenue and assessee inasmuch as the appellant carried out the activity of printing of plain PVC sheet. We find that the Ld. Counsel referred to Chapter Note 10 of Chapter 39 which is reproduced below: 10. In headings 39.20 and 39.21, the expression plates, sheets, film, foil and strip applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use). From the reading of the above chapter note it is clear that whether the PVC sheet is printed or unprinted it is falling under the same category and under same chapter heading, therefore, the legislature consciousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The product fetches value because same is plastic sheet and not for design printed on it. As such product is rightly covered by heading No. 39.20 and the classification is also supported by Section Note 2 to Section VII of Central Excise Tariff Act, 1985. The plastic sheets are not the products of Printing industry as incorrectly claimed by the assessee. Thus the said assessee have contravened the provisions of Rule 173B read with Rule 173F of Central Excise Rules, 1944. 2. A plain reading of the show cause notice makes it clear that it is not the Department s case that the product after printing has become a different product known to be Printed PVC Sheets. On the contrary the Department proceeds on the footing that the product after printing is the same as a plastic sheet - the only difference is it is duly printed with design and, therefore, its classification must remain within plastic industry Chapter i.e. Chapter 39 and does not get shifted to the printing industry Chapter i.e. Chapter 49. 3. Even the Assistant Commissioner in his order dated November 19, 1997 correctly proceeds on the footing that by mere printing, the fabric does not lose its original identity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simple ground that they are beyond the show cause notice of the Revenue, which accepts the fact that at least in the present case, no new product emerges after printing and consequently, therefore, that cannot be said to be any manufacture. On this ground alone, we set aside the Tribunal s judgment and restore that of the Commissioner, making it clear that the classification of the product remains under Chapter 39 Heading No. 39.20. 7. The appeal is disposed of in the aforesaid terms. From the above judgment, it is observed that the Hon ble Supreme Court after considering the facts regarding the activity of printing PVC sheet set aside the Tribunal s Order. Though the Hon ble Supreme Court has made mention that the Tribunal order have to be set aside on the ground that they are beyond the SCN however the Hon ble Supreme Court recorded the finding of the Commissioner (Appeals) of his order dated 30.03.1999 which describes the complete facts of the case, therefore, it cannot be said that the Supreme Court order has not considered the fact. Moreover in the same assessee s case reported at Commissioner of Central Excise, Thane vs Caprihans India Ltd. 2005 (181) ELT 77 (Tri. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so understood the relevant expression `manufacture in the same manner. In the present case it may not be necessary for us to rely upon the trade notice. We have already pointed out that printing on bottles will not amount to `manufacture within the meaning of Section 2(f) of the Act. 20. It is useful to refer to the tariff description in Item No. 23A of the Central Excise Tariff. The general description of the item is `glass and `glassware . There are four categories namely, (1) flat-glass (2) laboratory glassware (3) glass shells, glass globes and chimneys for lamps and lanterns and (4) other glass and glasswares including tableware. Admittedly, the bottles whether printed or not fall under category (4) mentioned above. If the contention of the Revenue is accepted it would lead to double taxation under the same tariff item. While at the gate of the main factory duty is leviable on the plain bottles under 23A(4), once again duty will be leviable on the printed bottles after the process of printing is over in the premises where such printing is carried out. Such duty will undoubtedly be on the value of the printed bottles which will include not only the cost of manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing on behalf of the revenue, has submitted that since in the present case the assessee had taken the matter directly to the High Court by way of a writ petition, the High Court accepted the stand of the assessee that the activity of decoration etc. was being carried out in a separate premises without any verification of the stand of the assessee. Learned counsel thus, contends that the ratio of the decision of this Court in J.G. Glass Industries Ltd. and others (supra) is not applicable on the facts of the present case. 7. We are unable to persuade ourselves to agree with learned counsel for the revenue. 8. In order to decide whether or not a process amounts to manufacture within the meaning of Section 2(f) of the Central Excise And Salt Act, 1944 (as it then existed), in J.G. Glass Industries Ltd. and others (supra) , this Court laid down a twofold test, viz., (1) whether by the said process a different commercial commodity comes into existence or the identity of the original commodity ceases to exist; and (2) whether the commodity which was already in existence will serve no purpose but for the said process. In other words, whether the commodity already in exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of coated paper and paper board was not eligible for exemption under Notification No. 67/95-C.E., dated 16-3-1995 for the reason that the assessee had cleared final product, i.e., coated paper at [nil] rate of duty under Notification No. 3/2001-C.E., dated 1-3-2001 as amended. Show cause notices were issued demanding certain amount of Excise duty and the demand was confirmed in the Order-in-Original passed by the Commissioner. Penalty was also imposed. 3. The assessee filed appeal against the orders. The question arose whether coating on uncoated paper, would amount to manufacture . The Tribunal found that on coating uncoated paper, an article with different name commercially may have emerged but it is not a distinct article with different character or use and therefore, no manufacturing process was involved when uncoated printing and writing paper is coated. The relevant discussion on this aspect runs as under : After hearing both sides we are of the view that the appellants are justified in contending that the process of coating of the uncoated paper would not amount to a manufacturing process. No different commodity emerges after the coating having distinct features ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not of polymers of vinyl chloride . Chapter Note 10, under Chapter 39 reads as follows : In Heading Nos. 39.20 and 39.21, the expression plates, sheets, film, foil and strip, applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles including square; but not further worked (even if when so cut, they become articles ready for use) . In view of the clear stipulation under Chapter Note 10, the reasoning of the Asstt. Collector was not correct and the ld. Collector had rightly set aside the impugned order and he would also drew attention to the cases reported in 1990 (47) E.L.T. 161 (S.C.) and 1990 (45) E.L.T. 260 (sic). 6. We have considered the submissions of both sides. We find that Tariff Entry 39.20 includes film and Chapter Note 10 mentioned inter alia that under this heading the expression films applies to films whether or not printed. As such printed film would also fall under Tariff Item 39.20 and the Collector is correct in pointing out that if duty is already paid once on such films, they will not be su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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