TaxTMI 
TaxTMI 
2014 (3) TMI 521
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....d: Plastic films, adhesives, inks, paper, aluminium foils, hot melts, specialty coatings etc. Laminated flexible packaging materials are supplied in the form of pouches, rolls cut to specific width, sheets cut to specific dimensions, sleeves to specific dimensions etc. The manufacturing process include rotogravure cylinder making by engraving process for required design or print as per selection of the buyers. Printing on plastic films papers, polyester films, BOPP films etc, using rotogravure cylinders on the printing machines. Initially such printed material is rewound on the rewinder to remove the defective material. Then the printed or unprinted material is mounted on the laminating machine where lamination is done by binding of two or more layers of same or different substrates with the help of bonding agent like adhesives. Such lamination can be either two ply lamination or three ply lamination and lamination process can be either by a) Extrusion Lamination or b) Adhesive Lamination. Then it passes through the heating chambers (dryers) where excess solvent is evaporated. At the other end of the machine 'laminates' or laminated material is collected. The laminates are t....
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.... 5 3921.90.26 Printed or unprinted flexible PVC Film, laminated to PVC or plastic film. 6 3921.90.94 Flexible plastic films other than PVC film. 7 3921.90.96 Printed or unprinted flexible plastic films other than PVC film, laminated to another plastic film 2.3 That their customers order Packaging Material in specific design and size and not films. They bought films from the suppliers. That; what they buy is known as films and what they manufacture and sell is known as 'packaging material'. 2.4 That; the usage of films is to manufacture packaging material; whereas packaging material is used for packing commodities of the customer. Films are not capable of packaging commodities. 2.5 The appellant have been clearing the aforementioned packaging materials pursuant to manufacture on payment of excise duty under sub-heading 39.20 and 39.21 for about two decades. The products manufactured by the appellant firm were packing materials for their buyers. Some of these products are used by buyers as wrappers for their products and there rest would be used for making pouches for packing of the other products. 3.0 The Revenue pursuant to the decision of Ho....
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.... on the amount as mentioned in para (e) above should not be recovered under Section 11DD of the Central Excise Act, 1944. 3.1 It was inter alia, alleged in show-cause notice that a. in the process of lamination, the product is a film to start with which remains a film after lamination and no new distinct product having a different identity or name come into existence. b. the process of lamination carried out by the appellants to produce the goods falling under Chapter Headings 39206912, 39209992, 392119026 & 39219096 of CETA did not amount to manufacture and therefore the appellants could not be considered as a manufacturer as defined under Section 2(f) of the Central Excise Act, 194 (Act) and consequently as per the provisions of Rule 3(1) of CENVAT Credit Rules, 2004 no CENVAT credit could be admissible on inputs and capital goods. c. the appellants could not have availed CENVAT credit on inputs and capital goods and utilize such credit towards payment of duty on the clearance of laminated products, towards home consumption, for export under Rule 19 of Central Excise Rules 2002 (CER, 2002) or under CT-1, & CT-3,....
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....ase of Metlex (India) Ltd. (supra) before the Apex Court, there was no evidence on the point of manufacturing process and it was the Revenue, which contested that the process amounted to manufacture, whereas in the appellant's case, the product manufactured by them is distinct and different from films on which activity of lamination and printing was undertaken and thereby, a food items etc. Further, in the case of Metlex (India) Ltd. (supra), there was no printing activity involved unlike the appellant's case. It is also pointed out that the earlier ruling of the Hon'ble Supreme Court in the case of Laminated Packings (P)Ltd. Vs. CCE- 1990 (49) ELT 326 (SC) was not considered by the Hon'ble Apex Court while considering the case of Metlex (India) Ltd.. In the case of Laminated Packings (P) Ltd., the Hon'ble Supreme Court vide its order dated 6.8.1990 had held that polyethylene laminated kraft paper with polyethylene, were liable to excise duty as 'manufacture' involved. Both the input and output falling under the same tariff entry is not relevant for determining dutiability as both are differently identifiable goods in the market and hence, held that the same....
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....e. The Appellants, in reply to the Show Cause Notice, took up the contention that there was no manufacture. If the Department still wanted to contend that manufacture had been undertaken, the Department had to prove it by cogent evidence. The Tribunal was clearly in error in seeking to cast the burden on the Appellants to show that there was no process of manufacture". 19 . In para 15 of the judgment, the Supreme Court has observed that mere lamination or metallization of a film does not bring about a new distinct product as such said process cannot be termed as manufacture. In para 16 of the judgment, the Supreme Court has referred to the plea of the department urging for remand of the case back for decision whether or not there was manufacture. In para 17, the Supreme Court rejected the said plea of the department observing that if the department wanted to contend that the assessee has undertaken manufacture, the department was required to prove it by a cogent evidence and that the Tribunal was clearly in error in seeking to cast the burden on the assessee to show that there was no process of manufacture. From this observations, it is clear that the appeal o....
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....several writ petitions. Writ Petition No. 623 of 1979 along with others were disposed of by the Bombay High Court by judgment delivered by the division bench on 16/17th June, 1983 in the case of New Shakti Dye works Pvt. Ltd. & Mahalakshmi Dyeing and Printing Works v. Union of India & Anr. [1983 E.L.T. 1736 (Bom.)]. By the said judgment, the Bombay High Court disposed of 24 writ petitions as the question involved in all those petitions was identical. In that case the constitutional validity of the impugned Act as well as the levy of duty on certain goods identical to the present goods involved in this application under Article 32 of the Constitution was involved. The Bombay High Court dismissed the said writ petitions. We will refer to the said decision later. We may, however, state that we are in respectful agreement with the conclusions as well as the reasoning of the decision of the Bombay High Court in the said petitions. Special leave to appeal to this Court has been granted from the said decision in the case of New Shakti Dye Pvt. Ltd. [1983 E.L.T. 1736 (Bom)]." 22 .The result of above discussion is that the orders of respective Commissioners are not sus....