9911796707
TMI Blog2003 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 to Collector of Central Excise, Coimbatore seeking clarification from the department regarding excisability and dutiability of liquid sodium silicate manufactured out of duty paid sodium silicate and the Superintendent of Central Excise, Pollachi-I Range vide his letter O.C. No. 15/94, dated 4-1-1994 had clarified that the process of dissolving the Solid Form of Sodium Silicate in water would not amount to manufacture and such units would not come under the purview of the Central Excise Licensing Control. Therefore, they surrendered the Registration Certificate dated 17-10-1994 and had filed a declaration on 21-10-1994, thereafter did not file any declaration after the introduction of Note 10 to Chapter 28 of Central Excise Tariff which was introduced w.e.f. 1-3-1997 to the effect that :- "In relation to products of this Chapter, labelling or relabelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture". 2.It is alleged that solid sodium silicate is duty paid item which was received by M/s. ASCPL from M/s. ACI for conversion to liquid sodium silicate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of soap. It undergoes lot of processes to become liquid sodium silicate, as admitted by them in the "process of manufacture" furnished to the department. Further, with regard to their argument as to "marketability", I would like to mention here that because of the fact the liquid sodium silicate could not be stored for a long time, only solid sodium silicate is marketed as such. In order to get liquid sodium silicate, it is not a simple process as to adding water to the solid sodium silicate, but it undergoes various processes as explained by them. Therefore, I hold that the process involved in bringing out the liquid sodium silicate amounts to "manufacture" and the same is rightly coming under the purview of Section Note 10 of Chapter 28 of CET". It was pointed out that the Addl. Commissioner had clearly recorded that the item could not be stored for long and only solid sodium silicate was marketable as such and this itself was sufficient to hold that these were not goods to be used by the consumer under Note 10 of Chapter 28 and should have dropped the proceedings. However, the Commissioner in the impugned order did not appreciate these submissions and has held that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domestically), not in manufacturing etc. (page 366) 6.With regard to the definition of said term, the reliance was placed on the following citations :- (1) Mangla Brothers v. CC, Bombay - 1984 (15) E.L.T. 151 (T) (2) CCE, Indore v. Pure Pharma Ltd. - 2002 (143) E.L.T. 386 (T) = 2002 (51) RLT 156 (T) (3) Ammonia Supply Co. v. CCE, New Delhi - 2001 (131) E.L.T. 626 (T) = 2001 (45) RLT 271 (T) (4) RamKishore Chemicals Co. Pvt. Ltd. v. CCE - 2002 (145) E.L.T. 106 (T) He submitted that in the following citations the term "Consumer" and "Consumer goods" were discussed :- (1) Lakme Lever Ltd. v. CCE, Mumbai-III - 2001 (127) E.L.T. 790 (T) (2) Mod Apparel Exports v. CC, Calcutta - 1996 (86) E.L.T. 388 (T) (3) Jayanti Food Processing Pvt. Ltd. v. CCE - 2002 (141) E.L.T. 162 (T) = 2002 (49) RLT 133. He also submitted that principles of Interpretation of Statutes viz, 'Ejusdemgeneris' would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- (1) Pushpam Pharmaceuticals Co. v. CCE - 1995 (78) E.L.T. 401 (S.C.) (2) Tamil Nadu Housing Board v. CCE, Madras - 1994 (74) E.L.T. 9 (S.C.) (3) Lubri-Chem Industries Ltd. v. CCE, Bombay - 1994 (73) E.L.T. 257 (S.C.) (4) CCE, Kanpur v. U.P. Lamination - 1997 (89) E.L.T. 440 (S.C.) 9.With regard non-applicability of Section 11AC of the Central Excise Act for imposing penalty, he relied on the following judgments :- (1) Apollo Tyres Ltd. v. CCE, Pune - 2001 (134) E.L.T. 679 = 2001 (47) RLT 1 (T) (2) Flex Engg. Ltd. v. CCE, Meerut - 2000 (39) RLT 533 (T) (3) Dhillon Kool Drinks Beverages v. CCE - 2000 (120) E.L.T. 81 (T) (4) Majestic Auto Ltd. v. CCE, Meerut - 2001 (130) E.L.T. 551 (T). 10.He also submitted that maximum penalty cannot be imposed under Section 11AC which would depend upon the totality of facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss which renders the chocolates marketable to consumer and shall amount to process of manufacture. In view of these judgments, ld. SDR prayed for dismissal of the appeals by sustaining the order of the Commissioner. 14.On a careful consideration of the submissions, we notice that the Department had itself in the initial stage clarified to the appellants that this process of converting solid sodium silicate into liquid sodium silicate did not amount to a process of manufacture and the item liquid sodium silicate are not goods. The appellants were clarified in the matter not to pay duty. This is an admitted fact. After the introduction of Note 10 to Chapter 28, it has to be seen as to whether the said process has brought into existence a product marketable to the consumers. The term "Consumer" has already been extracted from the Dictionaries above. The item has to be in a marketable stage to be used by the consumer who are the ultimate users of the goods. In the present case, the solid sodium silicate was converted into liquid sodium silicate by addition of water and pumped into the boiler with a mixture of 60 Kgs of Sodium Hypochloride solution (Liquid Bleach) which helps in colori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was held to be marketable. This is not applicable to the facts of this case. Further, judgment rendered by this Bench in the case of CCE, Coimbatore v. Kayes Agro Industries - 2001 (132) E.L.T. 701 also shows that the goods namely pesticides had already come into existence and therefore process of dilution of technical material in concentrate form into formulation was held to be a process of manufacture as new goods had arisen. In the present case, no new goods had arisen and therefore, this citation relied by the appellants would have applicability in this case also. We notice that even if the plea is taken that new goods had arisen, it is noticed that the goods after the process are not consumed by the ultimate user as the resultant product is not in stable condition. We notice that department itself in the initial stage had held that they are not goods. The appellants were carrying on a belief that they are not goods as liquid sodium silicate was not stable and not marketable and as used by the consumer. Therefore, the bona fide belief harboured by the appellants is justified. In such circumstances, the larger period is not invocable. The judgment cited by them would apply ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
