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TMI Blog2023 (11) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeal. 2. Excise Appeal No. 396 of 2012 was filed by the Appellant M/s The New Engineering Company against the Order-in-Original No. 17/COMMR./CE/KOL-II/ADJN/2011-12 dated 27.03.2012 passed by Commissioner of Central Excise, Kolkata-II, wherein duty of Rs.16,69,44,532/-was confirmed along with interest and imposed equal amount of tax as penalty. Excise Appeal No. 75002 of 2014 was also filed by the same Appellant against Order-in-Original No. 04/Commr./CE/Kol-II/Adjn./2013-2014 dated 16.09.2013 passed by Commissioner of Central Excise, Kolkata-II, wherein duty of Rs. 3,55,35,086/- was confirmed along with interest and imposed equal amount of tax as penalty. Excise Appeal No. 75049 of 2017 was also filed by the same Appellant against Order-in-Original No. 16- 19/Commr./CE/Kol-II/Adjn./2016-2017 dated 26.09.2016 passed by Commissioner of Central Excise, Kolkata-II, wherein duty of Rs.3,24,07,487/- was confirmed along with interest and imposed equal amount of tax as penalty. As the issues involved in all the above mentioned appeals are common, all these appeals are taken up together for decision by a common order. 3. The Appellant, M/s Eveready Industries India Ltd. are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g quality check operations at different stages has rendered the product marketable. Therefore, the activity of packing of rechargeable batteries along with chargers and labelling the same is a process "incidental or ancillary to the completion of a manufactured product" and hence amounts to "manufacture" under Section 2(f)of the CEA, 1944. The Notice was adjudicated vide Order-in-Original dated 02.12.2009 passed by Commissioner of Central Excise, Kolkata - I, wherein the Central Excise duty Rs. 4,12,67,046/- was confirmed along with interest and imposed equal amount of tax as penalty. 6. The Appellant submits that the activity of packing and labelling undertaken by them does not amount to 'manufacture' as defined under Section 2(f) of the Central Excise Act, 1944. Accordingly, they contended that the demand confirmed in the impugned order is not sustainable. 7. The Ld. A.R. reiterated the findings in the impugned orders and supported the case of the Appellants. 8. Heard both sides and perused the appeal records. 9. We find that the issue to be decided in these appeals is whether the activity undertaken by the Appellants would amount to 'manufacture' or not as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf life which is of extremely small duration. In these cases also no manufacture of goods takes place. (iv) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place. 9.2. In the present case we observe that after undertaking the activity of packing the chargers with the batteries and labelling them no different commercial commodity comes into existence. The goods viz. the charger and batteries remain exactly the same even after they are put together in a blister pack. In light of the decision of the Hon'ble supreme Court cited above, we hold that the activity of mere packing of rechargeable batteries along with battery chargers and labelling the same as "Eveready Rechargeable/Ultima" and "Uniross/Power Bank" does not amounts to manufacture. 9.3. We observe that the Appellant has placed their on the following rulings where the activity of packing has been held as not amounting to "manufacture" under the provisions of CEA, 1944: In Commissioner of Central Excise vs. M/s Sony Music Entertainment India Pvt Ltd, 2010-TIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture, this activity in our view cannot be considered as a manufacturing activity." In Sony Enterprises vs. Commissioner of C. Ex., Mumbai - IV, 2018 (364) ELT 411 (Tri-Mumbai),the Appellant used to purchase various goods from several manufacturers and was thereafter checking, testing, branding and packing the same with "CONA" brand name. The department contended the said activity amounts to manufacture in terms of Note 6 to Section XVI of Central Excise Tariff Act, 1985. In such factual circumstances, the Tribunal made the following findings: "From the reading of the above provisions, we observed that in respect of Chapters 84 and 85 of Central Excise Tariff, any activity which converted unfinished or incomplete product into finished or complete article shall amount to manufacture. In the facts of the present case, which is not under dispute that the appellant are purchasing manufactured goods and they are only carrying out quality tests, branding and packing of the goods for marketing purpose. These processes cannot be said that it contributes for converting incomplete or unfinished goods to the complete and finished article for the reason that neither any further assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deemed to be the manufacturing process. This sub-section would only apply to the goods specified in the 3rd schedule to the CEA, 1944. We observe that the goods falling under heading 8504 or 8507, in the present case are not specified in the 3rd schedule of the CEA, 1944. In light of the above, we hold that the activity of mere packing and labelling undertaken by the Appellant would not amount to "manufacture" in terms of Section 2(f) of the CEA, 1944. Accordingly, we hold that the demand confirmed in the impugned order dated 02.12.2009 is not sustainable. Since the demand is not sustainable, the question of demanding interest and imposing penalty does not arise. Accordingly, we set aside the impugned order dated 02.12.2009 and allow the appeal No.130 0f 2010, filed by the Appellant M/s Eveready Industries. 10. Regarding the three appeals filed by the Appellant M/s New Engineering Company, we observe that the Appellant has entered an agreement with M/s. Eveready Industries India Ltd for packing of 2 or 4 rechargeable batteries along with charger in a blister packs and labelling them as "Eveready Recharge/Ultima" and "Uniross/Power Bank". In terms of the agreement, M/s. Eveready ..... X X X X Extracts X X X X X X X X Extracts X X X X
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