TMI Blog2019 (8) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... TISSUES PVT. LTD. [ 2005 (8) TMI 111 - SUPREME COURT] was regarding the position existing prior to 01 March, 2003. Thus, the judgement of Supreme Court in the S R Tissues , in view of the amendment made in the definition of manufacture, which included cutting, slitting, packing, repacking of the products falling under 4818, would not be applicable after 01 March, 2003. Time Limitation - demand of Central Excise duty which was made under the extended time limit of 5 years under the proviso to section 11A(4) of the Central Excise Act, 1944 - HELD THAT:- The Department merely by stating that the respondent-assessee had mis-declared, suppressed facts and had evaded Central Excise duty, issued the show cause notice. It cannot be said that the assessee had earlier suppressed and mis-declared facts with an intent to evade payment of duty. Thus, the extended time period under section 11A(4) of the Central Excise Tariff Act, 1944 could not have been invoked. Supplies of finished goods manufactured by the appellant were made to Institutional consumers - HELD THAT:- The issue whether the goods are infact supplied to the Institutional consumers in bulk packs or in retail packs is the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944 under Chapter 4818 and this type of activity of cutting, slitting and packing /repacking of jumbo roll of paper into paper napkin and facial tissues, paper hand towel, handkerchiefs etc, would amount to manufacture as per the provisions of section 2(f) of the Central Excise Act, 1944. A demand of Central Excise duty covering the period from 2011-2012 upto November, 2015 amounting to ₹ 53,97,007/- was, therefore, made under section 11A(4) of the Central Excise Act, 1944 by invoking the extended time limit contained in the proviso. The provisions of demanding interest as well as imposition of penalty under the relevant sections have also been invoked vide show cause notice dated 31 March, 2016. 3. The show cause notice was adjudicated vide Order-in-Original No. 19/AB/CE/D-II/2016-17 dated 31 March 2017 whereunder all the charges invoked in the impugned show cause notice were confirmed by the learned Adjudicating Authority. The respondent-assessee filed an appeal before the Commissioner (Appeals) against the order-in-original dated 31 March, 2017 and by order No. 126/Central Tax/App-II/Delhi/2017 dated 31 January, 2018, the appeal of the respondent-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional Consumer, the provisions of Legal Metrology Act, 2009 and the provisions of Section 4 A of Central Excise Act, 1944 would not be applicable. There is no notification exempting payment of excise duty on goods sold to Institutional consumers . (iv) Notification No. 49/2008-CE (NT) dated 24.12.2008 also provides for assessment of cleaning or facial tissues, paper towel/ handkerchiefs etc. on the basis of retail sale price with 30% abatement. The issuance of demand notice and subsequent confirmation of the same by the adjudicating authority is legal and proper. 5. We have heard both the sides and have also perused the records of the appeal. 6. The definition of manufacture contained in section 2(f) of the Central Excise Act, 1944 was amended with effect from 01 March, 2003 and under the Third Schedule to the Central Excise Act, it has been mentioned that Central Excise Tariff, Chapter Heading 4818 covers cleansing or facial tissue paper, handkerchiefs and towels of paper pulp, paper cellulose wadding or webs of cellulose fibre. The amendment in the definition of manufacture under section 2(f)(iii) of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paper in-question was meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of aforesaid particular kind of printing has resulted into a product, i.e., paper with distinct character and use of its own which it did not bear earlier. Thus, the test of no commercial user witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same tissue paper. But we have no doubt that the transformation of jumbo rolls into either toilet rolls/ kitchen rolls or in the form paper napkins bring out a distinctive and different use in the article. Evidently, the resultant products are perceived differently in the market. Consequently, the test No. 4 formulated by the Hon ble Supreme Court is satisfied in the present case and hence the process undertaken by the appellant is to be considered as a process of manufacture. The liability for payment of excise duty is, therefore, incurred by the appellant. 13. It has been submitted that the Hon ble Supreme Court in S.R. Tissue case has held that the process of slitting/cutting of jumbo rolls of plain tissue paper into similar size does not amount to manufacture. We have carefully considered both the decisions of Apex Court. In the S.R. Tissue case, the Apex Court has considered the process of cutting/slitting and concluded it to be not a process of manufacture only by considering the fact that the characteristics of the tissue paper remains the same in the jumbo rolls as well as in the slit ones. We are of the view that after the decision of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. It cannot be said that the assessee had earlier suppressed and mis-declared facts with an intent to evade payment of duty. Thus, the extended time period under section 11A(4) of the Central Excise Tariff Act, 1944 could not have been invoked. 13. Another issue that has been raised by the Department is that the Commissioner (Appeals) wrongly held that mostly all the supplies of finished goods manufactured by the appellant were made to Institutional consumers and, therefore, the provisions of Legal Metrology Act, 2009 as well as the provisions of section 4A of the Central Excise Act, 1944 would not be applicable. The Department contends that no duty exemption Notification has been issued under the Central Excise Act exempting the payment of excise duty on the goods sold to Institutional Customers. The Department submitted that the Notification No. 49/2008 CE (NT) dated 24.12.2008 provides for assessment of cleaning or facial tissue, paper towel, handkerchiefs etc. on the basis of retail sale price with 30% abatement from the MRP price. The issue whether the goods are infact supplied to the Institutional consumers in bulk packs or in retail packs is the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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