TMI Blog2022 (1) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy 2004-2009 as explained by CBEC Circular No.7/2006-Cus, dated 13.01.2006. In the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS JOHNSON JOHNSON LTD. [ 2005 (9) TMI 85 - SUPREME COURT] , the Hon'ble Apex Court considering the meaning of manufacture in the context of Section 2(f) of the Central Excise Act, 1944, has held that the repacking would have to be from bulk packs to retail packs so as to render the product marketable directly to the consumer, wherein it was contended that there was repacking and labelling of the medicaments before sale to the dealer and stock transfer to other depots. It is significant to note all these judgments relates to Section 2(f) of the Central Excise Act, 1944. It is not in dispute that in the present case, we are dealing with 100% EOU, wherein Foreign Trade Policy is applicable, wherein Chapter - 9 provides for definition clause. In terms of the said definition clause - 9.37, manufacture means to make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, re-packing, polishing, lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of goods? 4. Whether Tribunal is in error in following the judgment of Nishith Impex Pvt. Ltd., reported in 2008 (223) ELT 192 [TRI-Kol]? 5. Similarly, whether the Tribunal is in error in following the judgment of Sunilkumar Jain V/s. CCE reported in 2008 (85) ELT 105 (CESTAT-Mum)? 6. Similarly, whether the Tribunal is in error in following the judgment of CC VS. Western Electronics reported in 2000 (116) ELT 181? 7. Whether the Tribunal is in error in applying CBEC Circular No.314/30/97/CE dated 06.05.1997 to the present case? 2. The respondent - assessee is an 100% Export Orient Unit (EOU) and is engaged in bond processing and manufacturing of agricultural commodities having two units namely, one at Anugondanahalli, Bengaluru and the other one at Venkatapura, Andhra Pradesh. The said EOU had a valid inbond manufacturing license for the manufacture of vegetables, fresh fruits, pickles in brine and vinegar and the same was valid up to 22.11.2007. The respondent was permitted to carryout the activity of reprocessing, repackaging, packaging of processed jams, sauce and marm. The Unit at Bengaluru used to import raw materials like vinegar, flavours, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue in a right perspective. 7. Learned counsel has placed reliance on the following judgments: 1. Commissioner of Central Excise, Mumbai V/s. Johnson Johnson Ltd., [2005 (188) E.L.T. 467 (S.C)] 2. Crane Betel Nut Powder Works V/s. Commissioner of Cus. C. Ex., Tirupathi [2007 (210) E.L.T., 171 (S.C.)] 3. Commr. Of C. Ex., Mumbai V/s. BOC [i] Ltd., [2008 (226) E.L.T. 323 (S.C.)] 4. Mercantile Company V/s. Commissioner of C. Ex., Calcutta [2007 (217) E.L.T., 330 (S.C.)] 8. Learned counsel for the respondent - assessee argued that 100% EOU in diverting raw material to another 100% EOU for manufacture, is only a prodedural lapse and on the ground of not obtaining permission for such diversion, exemption under the Notification No.53/97-CUS cannot be denied. To buttress this arguments, the finding of CESTAT Mumbai in the case of Sunil Kumar Jain and Others vs. CCE C, Nagpur I reported in 2008 (85) RLT 105 (CESTAT Mum.), which has been confirmed by the Hon'ble Apex Court reported in 2015 (326) ELT A87 (SC) has been relied upon. Nextly, it was argued that on the issue of eligibility of olives sold in the domestic market, Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra, the Hon'ble Apex Court considering the meaning of manufacture in the context of Section 2(f) of the Central Excise Act, 1944, has held that the repacking would have to be from bulk packs to retail packs so as to render the product marketable directly to the consumer, wherein it was contended that there was repacking and labelling of the medicaments before sale to the dealer and stock transfer to other depots. 14. In BOC (I) Ltd., supra, placing reliance on Johnson and Johnson Ltd., supra, the Hon ble Apex Court has held that mere labeling or relabeling in the absence of any activity of repacking from bulk packs to retail packs would not render the product marketable directly to the consumer. 15. In the case of Crane Betel Nut Powder Works, supra, the Hon'ble Apex Court has considered the process of crushing betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthol, sweetening agents etc., in the context of Section 2(f) of the Central Excise Act, 1944 has held that the said process did not result in manufacture of a new and distinct product having a different character and used as an end product continues to retain its ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
