TMI Blog2009 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1859/2005, 3632/2005,7608-7611/2005, 909/2006 and Civil Appeal No. 1313 of 2009 (Arising out of S.L.P.(C) No.20726/2004) ORDER 1. Leave granted in S.L.P.(C) No.20726/2004. 2. A short question which arises in this batch of Civil Appeals is: whether the process undertaken by the appellant (Assessee) resulting in emergence of "intermixture of vitamins" comes under the definition of the word "manufacture" in Section 2(f) of the Central Excise Act, 1944 read with Note 11 to Chapter 29 of the Central Excise Tariff 1997-98 dealing with Organic Chemicals? 3. To answer the above question, we quote herein-below Section 2(f) of the said 1944 Act, which reads as follows: "(f) "manufacture" includes any process - (i) incidental or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of infant products, assessee buys various vitamins like Vitamin A, Vitamin D and Vitamin E etc. on payment of excise duty from the manufacturers of the vitamins. Thereafter, depending upon the requirement of the particular vitamin content to be present in the finished product, various vitamins are mixed in a pre-determined ratio with the help of electro mechanical devices by effecting a uniform dispersion of liquid, semi solid or solid ingredients of a mixture by means of mechanical agitation. After the bought out vitamins are mixed in the above mentioned manner, the item so obtained is called "intermixture of vitamins". According to the assessee, the item so obtained is stored by them in plastic drums/aluminium bottles in their factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which fact also established that the process of manufacture is involved while preparing the 'intermixture of vitamins' for the infant foods. In this connection, the Department places reliance on the aforesaid Note 11 to Chapter 29. 7. In reply to the show cause notice, assessee contended that Vitamin A, Vitamin D and Vitamin E etc. are purchased by them; they are mixed in a pre-determined ratio with the help of electro mechanical device but both prior to the activity of mixing and even thereafter the bought out vitamins remain the vitamins. Assessee contended that individual Vitamin A, Vitamin D and Vitamin E etc. do not undergo any change whatsoever in their chemical or physical properties after mixing and that they retain their ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture' and, therefore, the said section needs to be read strictly. 10. The submissions made by the assessee were rejected by the adjudicating Authority who confirmed the demand. However, the adjudicating Authority granted the benefit of MODVAT credit. 11. Aggrieved by the decision, the matter was carried in appeal to the Tribunal whose decision is the subject matter of Civil Appeals Nos.5064/2004, 323/2005, 1859/2005, 3632/2005, 7608-7611/2005 and 909/2006 filed by the assessee. Incidentally, it may be mentioned that Civil Appeal arising out of S.L.P.(c) No.20726/2004 is filed by the Department against the decision of the Tribunal which has held that there was no suppression of material facts and, therefore, the Department was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion but not the only situation. Even if a product is by itself marketable and the assessee undertakes some treatment on the said product which renders it marketable in some other form, the treatment would be covered by the phrase "any other treatment to render the product marketable to the consumer". 15. In the present case, as stated above, Vitamin A, Vitamin D and Vitamin E etc. were undoubtedly bought out items. They were undoubtedly marketable. These vitamins were converted into a recipe which according to the assessee was not marketable and, therefore, Note 11 is not applicable. According to the assessee, no evidence has been led by the Department to show that the said recipe is marketable. On this aspect also there is no finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise Vs. Chemphar Drugs Liniments, reported in 1989 (40) ELT 276, extended period of limitation is applicable only when there is some positive act other than mere inaction or failure on the part of the manufacturer. There must be conscious or deliberate withholding of information by the manufacturer to invoke larger period of limitation. In view of the aforesaid two decisions, we see no infirmity in the decision rendered by the Tribunal on the question of extended period of limitation. Accordingly, Civil Appeal arising from S.L.P.(c) No.20726/2004 filed by the Department stands dismissed. 19. Subject to what is stated, the assessee's Civil Appeals are allowed as directed herein-above. The matters are remitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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