TMI Blog2019 (6) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... R PER P.K. CHOUDHARY : The present appeal is against an Order-in-Original No. 14/MP/COMMISSIONER/2009 dated June 30, 2009 passed by the Commissioner of Central Excise Service Tax, Patna, whereby the Commissioner has confirmed a central excise duty demand of ₹ 9,03,61,779/- against the appellant, along with interest thereon under Sections 11A(2) and 11AB of the Central Excise Act, 1944 ( the Act ) respectively. Equivalent amount of penalty of ₹ 9,03,61,779/- has also been imposed under Section 11AC of the Act upon the appellant. 2. The facts of the case in brief are :- (a) The appellant refines crude oil and markets the finished products thereof, such as, motor spirit ( MS ) and high speed diesel ( HSD ), kerosene, petroleum etc. MS and HSD are classifiable under Chapter Sub-heading Nos. 2710.1100 and 2710.1930 respectively. (b) The appellant also purchases, inter alia, MS and HSD from other public sector oil companies e.g., Indian Oil Corporation Limited. Such MS and HSD are excise duty paid, the duty having been paid by the seller public sector oil companies at the time of clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make branded MS and HSD respectively amounts to manufacture within the meaning of Section 2(f) of the Act. 5. This issue has been decided in a large number of decisions of the Tribunal, all of them holding that there was no manufacture within the meaning of the Act in the said activity of blending of MS and HSD with multi-functional additives to make branded MS and HSD. Though appeals have been preferred against some of the orders passed by the Tribunal by the Revenue before the Hon ble Supreme Court of India, no stay of any of the impugned orders of the Tribunal has been granted. As such the subject orders passed by the Tribunal continue to remain in force and applicable. Two of the decisions of the Tribunal have been passed in appeals filed by the appellant itself, pertaining to its units situated in other parts of the country. 6. In the case of Hindustan Petroleum Corporation Limited Vs. Commissioner of C.Ex., Delhi and Rohtak, 2009 (234) ELT 648 (T), the Principal Bench of the Tribunal dealt with the self-same issue in the appellant s own case and has held as under:- 4. We have carefully considered the submissions from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE reported in 2004(164) E.L.T. 390(S.C.) has held that manufacture implies a process, as a result of which a new product with distinctive name, character and usages emerges, that the word manufacture implies change, but every change in raw material is not manufacture and that there must be such a transformation in the raw material as a result of the processing that a new and different article with distinct name, characteristics and usages emerges. This criteria of manufacture is not satisfied in this case as, as mentioned above, the MS and the HSD after blending with MFA remain MS and HSD only and except for a brand name being added to their names, there is no change in their basic characteristics and usages. As mentioned above, there is no separate ISI specification for branded MS or branded HSD and both branded as well as unbranded MS/HSD have to conform to the same ISI specifications. Similarly, there is no change in their use. Thus, applying the above-mentioned criteria laid down by the Hon ble Supreme Court as to what constitutes manufacture, the process of blending ordinary MS or HSD with MFA to make branded MS or branded HSD, does not amount to manufacture. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous and unsustainable. The said decision, the relevant part whereof is set out hereinabove, fully applies to the instant case. The amendments made to Exemption Notification No. 4/2006-CE dated March 01, 2006 by Notification No. 4/2008-CE dated March 01, 2008 does not make any difference. Notification No. 4/2006-CE, prior to amendment, provided for levy of duty on MS and HSD at a single rate, irrespective of whether or not they were being sold under a brandname or otherwise. By the amendment Notification No. 4/2008-CE separate rates have been provided for both MS and HSD which are intended for sale with or without a brandname respectively, a higher rate being provided for sale of the products under a brandname. This amendment in no manner whatsoever alters the basic principles and tests laid down by the Apex Court, which have not been satisfied in the instant case, for a particular process to be manufacture of excisable goods within the meaning of the Act, as detailed in the order dated September 2, 2008 of the Tribunal. The amended notification merely provides for two different rates of excise duty for MS and HSD, one for unbranded and the other for branded category. This does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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