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of <h1>Creating Vitamin Mix = Manufacturing: Tribunal Upholds Duty & Penalties</h1> <h3>NESTLE INDIA LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH-II</h3> NESTLE INDIA LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH-II - 2011 (270) E.L.T. 575 (Tri. - Del.) Issues Involved:1. Whether the activity undertaken by the assessee constitutes manufacture conceptually/first principle while applying the twin test of manufacture and marketability.2. Whether the activity undertaken by the assessee stands covered by the provisions of Section 2(f) of the Central Excise Act, 1944 read with Note 11 of Chapter 29.3. What is the meaning of the word 'consumer' in Note 11 to Chapter 29.Detailed Analysis:Issue 1: Conceptual Manufacture and MarketabilityThe Tribunal examined whether the process of mixing various vitamins to create an intermixture constitutes manufacture. The process involves mixing vitamins in predetermined ratios using an electromechanical device, resulting in a product with distinct characteristics and uses compared to the individual vitamins. The Tribunal concluded that the process met the criteria for manufacture as defined under Section 2(f) of the Central Excise Act, 1944. The resultant product, known as a vitamin mix, has a distinct identity and use, different from the individual vitamins, thereby satisfying the twin tests of manufacture and marketability.Issue 2: Coverage under Section 2(f) and Note 11 of Chapter 29The Tribunal analyzed whether the activity fell within the scope of Section 2(f) of the Central Excise Act, 1944, and Note 11 of Chapter 29. Note 11 states that any treatment rendering a product marketable to the consumer amounts to manufacture. The Tribunal noted that the process of mixing vitamins, labeling, and storing the resultant product for use in manufacturing infant foods constitutes a treatment that renders the product marketable. The Tribunal emphasized that the term 'treatment' includes any process that confers marketability attributes to a product, even if it already possesses some marketability attributes. Therefore, the activity undertaken by the assessee is covered by the provisions of Section 2(f) read with Note 11 of Chapter 29.Issue 3: Meaning of 'Consumer' in Note 11 to Chapter 29The Tribunal interpreted the term 'consumer' in Note 11 to mean any consumer, including industrial consumers, and not exclusively retail consumers. The Tribunal rejected the argument that the term 'consumer' should be limited to retail consumers, stating that the Note does not impose such a restriction. The Tribunal clarified that the term 'consumer' refers to anyone who uses the product, including the manufacturer who captively consumes the product. This interpretation aligns with the purpose of Note 11, which is to expand the scope of 'manufacture' to include any treatment rendering the product marketable.Conclusion:The Tribunal concluded that the activity of mixing vitamins to create an intermixture constitutes manufacture under Section 2(f) of the Central Excise Act, 1944, and Note 11 of Chapter 29. The product is marketable and satisfies the criteria for excisability. The term 'consumer' in Note 11 includes any consumer, not just retail consumers. The Tribunal upheld the demand for duty and penalties, subject to re-quantification based on the Supreme Court's ruling on the extended period of limitation. The appeals were disposed of accordingly.
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