TaxTMI 
TaxTMI 
1998 (11) TMI 430
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....ts are that the appellants are engaged in the activity of making what are known as Cable Jointing Kits. These cable jointing kits are prepared out of bought out items, except Heat Shrinkable Sleeves, which they import. All these are put in a kit form and packed in a carton. The department initiated proceedings against the appellant alleging that by putting together these articles into a container a new commodity called cable jointing kits comes into existence having different name and character and that this would amount to a process of manufacture as defined under Section 2(f) of the Central Excise Act and cable jointing kits would be classifiable under sub-heading 8547.00 of Central Excise Tariff Act, 1985. The show cause notices were iss....
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....nt said that the matter is no more res integra and cited and relied upon the Andhra Pradesh High Court judgment in the case of XL Telecom v. Commr. in a writ petition 8818, 22078 and 24242 of 1997 [1999 (105) E.L.T. 263 (A.P.)], which was decided on 2-2-98. Ld. Counsel stated that this very product cable jointing kits and its excisability had been the subject matter of this writ petition. The petition has also chal­lenged the validity of circular of Central Board of Excise and Customs 308/24/97-CX, dated 27-3-97, whereby the Board held that process of putting together a number of duty paid article into a carton or kit to be marketed as cable jointing kits, would amount to manufacture as defined under the Central Excise Act. The Andhra P....
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....rned when it was called on 29-6-98. Then on 3-8-98, the matter was adjourned to 15-9-98 on being mentioned by the Counsel for the appellants, who stated that the matter is covered by the precedent decision. On 15-9-98 both the sides asked for adjournment and on 7-10-98, which is the next date of hearing, the Sr. Counsel of the department had some personal difficulty and the matter was again listed for 16-10-98, on which the Bench was not available. It has been listed again today. The ld. Counsel for the appellant is present and has argued and the Sr. Counsel for the department is said to be not in a position to come. The officers of the Anti-evasion Directorate are present. We find that the issue relating to wheth­er the activity undert....
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....he kit does not amount to manufacture, the provisions of the Act are not applicable as the levy of excise duty is on the production and manufacture of goods. If the 'CKJ' is not excisable as no manufacture is involved, the provisions of the Act are not applicable and the circular issued by the 5th respondent is without authority of law. If the circular issued is without authority of law, the respondents do not get any jurisdic­tion to levy central excise duty on all cable jointing kits. Therefore, the notice issued proposing to levy duty on cable jointing kits pursuant to the impugned circular is without authority of law and jurisdiction." In this judgment the High Court has also held that the Board circular clarifying the activit....