TMI Blog2005 (9) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... are procured from indigenous suppliers. (ii) All the imported materials are tested and checked with the master samples maintained at the factory and their conformation to strict quality requirements is ensured. (iii) The bottles/godets/tubes/containers etc are filled in the factory and in case of bottles the fitment of pumps, actuators and collars, is carried out. (iv) Individual cartons and liners are folded and kept ready for packing of the required products. (v) The bottles are spray tested on the conveyor and then inserted in individual cartons which are subsequently labeled. (vi) After the various products are put in their respective individual cartons and the individual cartons are labeled, the activity of cellophaning of individual cartons is carried out. The BOPP films used for cellophaning are cut to specific sizes and cellophaning is carried out either manually or with the cellophaning machine. (vii) The cellophaning cartons are assembled and assorted as per the customers requirements and then placed in inner cartons which are then labeled. (viii) The inner cartons are segregated and assorted as per customers require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veyors is carried out after dismantling the filled bottles. Detective products are rejected. (iii) The products are then inserted in their respective individual cartons which are subsequently labeled. (iv) After the various products are put in their individual cartons and the individual cartons are labeled, the activity of cellophaning of individual cartons is carried out. The BOPP films used for cellophaning are cut to specific sizes and cellophaning is carried out either manually or with the cellophaning machine. (v) The cellophaned cartons are assembled and assorted as per the customers requirements and then placed in inner cartons which are then labeled. (vi) The inner cartons are segregated and assorted as per the customers requirements and subsequently placed in outer cartons, gum taped, strapped and labeled as per shipment specifications. resulting in producing an export quality product that is marketable to the consumer. 1.3 The appellants besides engaging themselves in above processing operations also engaged themselves in export of such marketable entities and clear the same on payment of duties, to the Domestic Tariff Area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect goods not be denied the benefit of notification 2/95-C.E., dated 4-1-95 in view of provision of para (3) of Notification No. 133/94-Cus., dated 22-6-94 and the goods levied duty at the full rate of 40% + CVD 50% under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. (ii) Duties short paid amounting to Rs. 60,41,095/- under Section 11A of Central Excise Act 1944 with interest under Section 11AA be recovered penalty under Section 11AC of that Act not be imposed. (iii) Confiscation liability under Rule 173Q(1) read with Rule 209 be invoked. 1.5 The Commissioner found - (i) Operations conducted by the appellants are not covered by section 2(f) of the definition of Manufacture under Rule 2(f) of the C. Ex Rule, 1944 (SIC). (ii) wrong quotation of rules will not vitiate the demand. (iii) Para 3 of Notification 133/94-Cus. provide for clearance to DTA as per Notification 2/95 only in case where the activity conducted in EPZ will result in resulting of Excisable goods in terms of Central Excise Section Act, 1944 or chapter notes, Section notes or heading/subheading of Central Excise Tariff Act, 1985, otherwise the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where the ingredients of proviso to Section 11A(1) are involved and established. The demands under Section 11A cannot be upheld if no manufacture under Central Excise Act, 1944 takes plea. The imposition of the joint 100% mandatory penalty under Rule 173Q read with Section 11AC not only cannot be upheld following the settled case law (i) 2002( 150) E.L.T. 404 (T) - Thermotech v. CCE (ii) 2004 (171) E.L.T. 201 (T) - Ovdel Avdel (India) Pvt. Ltd. v. Commissioner of Central Excise. (iii) 2002 (104) ECR 89 (T) - Aditya (iv) 2001 (132) E.L.T. 41(T) - Punjab Recorder Ltd v. Commissioner of Central Excise, Chandigarh. (v) 2001 (134) E.L.T. 454 (Tribunal) = 2001 (46) RLT 866 (T) - Monica Electronics but also, it exhibits the bias on part of the Adjudicator to somehow confirm the charges, made out in the notice, it also exhibits a misdirected application of mind, when it is found Section 11AC of the Central Excise Act, 1944 has not even been invoked or penalty propose in the notice issued. This order is therefore to be set aside on this account itself. (b) There is no demand made out in the notice under the Customs Act 1962. Order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncept of manufacture, as there is no finding that the goods were marketable dehors all or any one of these process; the bland allegations of deodorant cans to be finished goods would not be sufficient to hold so. (iii) We do not read the provision of para 3 of Notification No. 133/94, as is being read by the Ld. Commissioner to arrive at a conclusion to deny the benefit of manufacture under Central Excise Act, 1944 not taken place. On reading the provisions of para 3 of Notification No. 133/94, we cannot find a provision therein to arrive at a conclusion, as the Ld. Commissioner has arrived, viz. if manufacture under - Central Excise Act does not take place, duty of Customs foregone should be and has to be demanded. The goods imported and cleared under Notification 133/94-Cus. are to be cleared to the premises of an Export Processing Zone or a Free Trade Zone as specified; used at such premises in manufacture in such zones, notification would be complied once the imported goods are put to a process. However, if levy under Section 3 of the Central Excise Act, 1944 is not attracted, then the concept of 'manufacture', has to be understood, to be different, as to what process s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
