TMI Blog2018 (8) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... rcially identifiable as BPL Kit. The process of mounting two components/items on the wooden or plastic board would not amount to manufacture - The Revenue did not produce any evidence or did not even assert that these are commercially known and marketed product. The electrical components retained their name, character and use and there is no new commercially identifiable product emerging in the present case - the appellants have not manufactured any dutiable item attracting central excise levy during the material time. Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 50872-50873 of 2017 - Final Order No. 52759-52760/2018 - Dated:- 9-8-2018 - HON BLE MR. ANIL CHOUDHARY, MEMBER ( JUDICIAL ) And HON BLE MR. BIJAY KUMAR, MEMBER ( TECHNICAL ) For the Petitioner : Sh. Jatin Mahajan, Adv For the Respondent : Sh. R. K. Mishra, DR ORDER Per Anil Choudhary Both the present appeals are filed by the Appellants against the Order-in-Appeal No. ALW-EXCUS-O-I-O-COM-88/16-17 dated 02.02.2017 passed by the Commissioner of Central Excise), Alwar. The period in dispute is 2009 to 2015. 2. The brief facts of the case are that the assessee-appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-assessee for classifying the BPL kit under CETH 85371000 and to demand a Central Excise Duty of ₹ 2,28,15,486/-. The appellant assessee contested the demand and submitted various documents and defence opposing the said demand. He confirmed duty demand of ₹ 2,28,15,486/-. He affirmed the demand for an extended period and imposed a penalty of equal amount on assessee-Appellants and ₹ 1,00,00,000/- on the Proprietor. Both the assessee-Appellants have filed appeals against the said order. 4. The ld Counsel appearing for the appellant-assssee mainly submitted on the following lines: i) The original authority failed in examining the issue of manufacture before proceeding with the classification. There is no new manufactured item arising out of the process undertaken by the appellant which will amount to manufacture in terms of Section 2(f) of the Central Excise Act, 1944. Mere mention of certain products in the tariff classification will not make them liable to Central Excise Duty. The assessee should be involved in producing said goods by a process which will amount to manufacture. ii) There is no change in the name, character and use of the goods now subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the Apex Court. In Delhi Cloth General Mills Company Ltd, 1977(1) ELT (J199) (SC), the Apex Court examined the scope of the term manufacture . It was held that the term process cannot be equipped to manufacture . The word manufacture used as a verb is generally understood to mean as bring into existence a new substance and does not mean merely to produce some change in a substance . Relying on an American judgment, it was observed : Manufacture implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. 7. In M/s J.G. Glass Industries Ltd, 1988 (97) ELT 5 (SC), the Apex Court held that a two-fold test emerges for deciding whether the process is manufacture . First, whether by the said process, a different commercial commodity comes into existence or whether identity of the original commodity ceases to exist; secondly, whether the commodity which was already in existence will serve no purpose but for the said process. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat mere putting together of two or more items by itself will not make an assembly of a new item. In M/s Narang Latex and Dispersions (P) Ltd, 2001 (134) ELT 482 (Tri-Mby.), the Tribual held that when the appellant cleared the nipples manufactured by them by attaching them with bought-out bottles, the process of attaching the rubber nipples with the bottles and packing together for clearance will not amount to manufacture. The said order of the Tribunal was affirmed by the Apex Court,2000 (139) ELT A-392 (SC). In M/s Shivam Enterprises, 2017 (345) ELT 550 (Tri.-Del.), assembling audio cassettes without magnetic tap was found to be not a process of manufacture. In M/s Medtroniocs (P) Ltd,2006 (199) ELT 347 (Tri.-Bby.), the Tribunal held that Custom pack made by the appellant by adding parts like plastic tubes, connectors, blood filters, caps, oxygen, etc. cannot be held to be a process of manufacture. No new product emerges when these parts are put together in a pack for a ready-to-use condition. The said decision of the Tribunal was affirmed by Hon ble Gujarat High Court in 2015 (323) ELT 738 Gujarat and further affirmed by the Apex Court reported in 2015, ELT A48 (SC). 11. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
