TMI Blog1987 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactures fertilisers. The duty on fertilisers including triple super phosphate was for the first time levied with effect from 1-3-1969. According to the appellant, on the midnight of 28-2-1969/1-3-1969, the Respondent had a stock of 604.46 M.T. of triple superphosphate in loose condition. Between 1st March, 1969 and 19th May, 1969, the Respondent dispatched 194.15 M.T. out of the aforesaid quantity of triple superphosphate without payment of duty. On 20th May, 1969, the Representatives of the Appellant refused to allow clearance of any part of the balance stock without payment of duty. Therefore, from 20th May, 1969 onwards, the Respondent cleared the remaining 411.31. M.T. of fertilisers on payment of duty. This duty appears to have been paid under protest. The Respondent later applied for the refund of the amount paid under protest. 4.The Assistant Collector rejected the refund observing that under Section 2(f) of the Central Excises and Salt Act (hereinafter referred to as the Act) not only manufacture of goods but any process incidental to the completion of manufacture is covered by the Section. He also noted that according to Fertiliser Control Order, the goods have to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4(4)(d)(i) came into existence in 1975 and could not be applied to the facts of the present case wherein duty was paid in 1969. 9.We have considered the arguments of both sides. It is obvious that the Provisions of 4(4)(d)(i) cannot be invoked here as this Section came into force long after the relevant period. According to the Assistant Collector, the Supreme Court, in the matter of Delhi Cloth Mills held that marketability is a criterion for the definition of goods under the Act. In the present appeal, it has not been shown that the goods were not marketable in the condition they were, on 28-2-1969. No trade opinion has been gathered to come to such a conclusion. The statutory requirement under Fertiliser Control Act did make it compulsory for the appellants to pack the fertilisers. But this was a requirement under another Law for another purpose - that of protecting fertilisers from adulteration, contamination, etc. It did not, in any way, limit or define manufacture under Central Excise Law. Also, these points were considered by the Madras High Court (1978 E.L.T. J 28) and the judgment followed by the Appellate Collector. 10.We have perused the orders of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.In the result we are left to decide that issue benefit of assistance either from the counsel appearing in this appeal or the counsel appearing in the appeal of M/s. Shriram Rayons (A.No. ED/SB/104/83-C) who had expressly given up that contention. 17.Does it mean that we need not go into the issue referred to us notwithstanding that it squarely arose in this case? My learned brother seems to think so and he has not adverted to any discussion of the conflicting case law on the aforesaid issue referred to the larger bench. I am, however, unable to agree. 18.In this appeal the goods manufactured were fertilizers. On the date of manufacture there was no levy. The levy came to be imposed for the first time on 1-3-1969 when the fertilizers in question were in a loose condition. The removal occurred thereafter and it is contended that since fertilizer could not have been disposed of unless duly packed in terms of the Control Order, the manufacture of the fertilizers in question was not complete unless the fertilizers were duly packed. Accordingly, packing was also part and parcel of manufacture and since that occurred after the levy on 1-3-1969 the goods were assessable to duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the contrary are : (a) 1978 E.L.T. 18 (Madras High Court) (M/s. E.I.D. Parry Ltd. v. Union of India - Packing cannot be regarded as a process incidental or ancillary to the completion of a manufactured product); (b) 1979 E.L.T. 457 (Calcutta High Court - Orissa Industries v. UO.I. - Packing is not a process incidental or ancillary to the completion of manufacture); (c) 1979 E.L.T. 461 (Karnataka High Court - Alembic Glass Industries v. U.O.I.); (d) 1984 (15) E.L.T. 3 (Madras) (Seshasayee Paper Boards v. Appellate Collector - Rule 56A does not require that the packing material must be utilised in the manufacture of the finished product. It does not undergo any manufacturing process nor does law insists upon such qualification); (e) 1984 (18) E.L.T. 229 (Andhra Pradesh High Court) - Bhadrachalam Paper Boards v. Collector of Central Excise - Rule 56 (A) - Duty paid wrapping paper used for packing other varieties of paper - For the more convenient distribution of the finished product the wrapper is used without undergoing any manufacturing process - It was not the case of the assessee that the wrapping paper was material or component part - Mere distribution of finishe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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