TMI Blog2018 (11) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ) For the appellant: Shri Rahul Gajera, Advocate For the respondent: Shri T.G. Rathod, Jt. Commr., (AR) ORDER Per: Raju This appeal has been filed by M/s. Beri Mercurio against confirmation of demand of Central Excise and imposition of penalty. 2. Ld. Counsel for the appellant pointed out that they received mercury and after certain purification process, the same is cleared by them. He argued that a Show Cause Notice was issued to them alleging that they are engaged in repacking of the mercury. It was argued that repacking of mercury amounts to manufacture in terms of note 10 of Chapter 28 of the Central Excise Tariff Act. He said note 10 of chapter 28 reads as follows: In relation to products of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong facts. Ld. AR further pointed out that the appellant s assertion that there was no repacking from bulk containers to small containers is misplaced as a report of the superintendent indicates that the appellant was receiving mercury in bulk packs of 150 to 250 kgs each. Whereas they were clearing the mercury in the pack of 34.5 kgs each. 4. We have gone through rival submissions. We find that Hon ble Apex Court in the case of Johnson Johnson Ltd. 2005 (188) ELT 467(S.C.) has interpreted an identically worded note 5 to chapter 30 which reads as under: 2. Note 5 Chapter 30 has extended the meaning of manufacturers and reads as follows : In relation to products of Heading No. 30.03, conversion of powder into tablets or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that merely packing for being marketed would not do. The repacking would have to be from bulk packs to retail packs so as to render the product marketable directly to the consumer. There is no evidence relied upon by the appellants to the effect that the cardboard boxes in which the units were placed or the thermocole containers were retail packs . In the instant case also while there is a charge that the goods were repacked from bulk to smaller packing but there is no charge that there was any labeling or relabeling done. In absence of the change of labeling or relabeling simply repacking from bulk to small containers, as charged in the Show Cause Notice would not amount of manufacture. In view of above the demand itself does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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