TaxTMI 
TaxTMI 
2011 (12) TMI 436
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....ranchisee rights for manufacturing and marketing of "Bisleri" branded mineral water to one M/s. Gujarat Beverages (GB for short) and to the appellant on job work basis. According to him, the appellants were required to carry out only filling and sealing of containers with water for GB at agreed rates, maintain quality standards and deliver filled and sealed containers to GB. He submitted that the raw materials like pet bottles, caps and packing materials were sent to the appellants by M/s. GB under challan and returned to M/s. GB under challan. According to him, manufacture was not completed at the premises of the appellant since the labels were not affixed on filled and sealed packaged containers as required under the Standards of Weights and Measures Act and Packaged Commodity Rules made thereunder. Since this was a mandatory requirement to be fulfilled by manufacturer, manufacture cannot be said to have been completed and, therefore, it was GB who have to be considered as manufacturer and not the appellants. He also submitted that in para 19, working between the appellant and M/s. GB were described correctly, but findings recorded by the Commissioner are not correct. He also sub....
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....t the brand name was not at all affixed by the appellant and no label was affixed. The appellants had only supplied mineral water packed in bottles and duly sealed. A sample of the bottle and the cap was produced during the hearing by the learned Consultant and it was seen that the bottles had embossed labels about brand name "Bisleri" and further, date of manufacture and date of expiry were printed. Further, the cap also had the brand name. Therefore, it cannot be said that the appellants had not completed the manufacturing processes. 5. As regards time-bar, we find that the appellants undertook manufacture of mineral water without verifying the legal obligations at all. The learned Commissioner has observed that the fellow job workers of the appellants such M/s. Surbhi Milk Food and Beverages Ltd. were paying duty on the same product. It is difficult to believe that the appellants were not aware of the fact that a fellow job worker who had similar contract with the same company namely M/s. Gujarat Beverages Ltd. were paying duty, was not known to them. The appellants did not keep any accounts of goods manufactured but cleared the same on payment of Sales tax but without p....
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....ivity of affixing of label on the goods to make them marketable also amounts to manufacture in terms of Chapter note under Chapter 22. As such, the job work of "filling and sealing" containers with water, were in a condition of semi-finished goods and the appellants cannot be said to have manufactured the product, which were complete and marketable. 10. The appellants have further contended that the reliance on the decision of the Hon'ble Supreme Court in the case of M/s. Pawan Biscuits Company Pvt. Limited - 2000 (120) E.L.T. 24 (S.C.) by the Commissioner (Appeals) was not appropriate inasmuch as the said decision was in respect of valuation of the goods manufactured on Job Work basis. M/s. Pawan Biscuits Company Pvt. Limited had fully manufactured the biscuits on behalf of Britannia and the dispute was only in respect of valuation. On the other hand, the goods are not fully manufactured by the appellants, inasmuch as they have not labelled the same. 11. The appellants have also contested the demand on the question of limitation inasmuch as, the demand for the period 1999-2000 is issued in June 2000. They have contended that they were under the bona fide belief tha....
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....erages Pvt. Limited. As such, they cannot be said to be hit by Paras 4 and 5 of Notification No. 8/99, dated 1-3-1999. For the said reasons, I find no justification for confirmation of demand against them. 15. In any case, I find that the definition of manufacture, appearing in Section 2(f) of Central Excise Act, 1944 include any process which involve packing or re-packing of such goods in a unit container, or labelling or re-labelling of container, including the declaration or alteration of retail price on it, or adoption of any other treatment on the goods to render the product marketable to consumer. Admittedly, the labelling in the present case was done by M/s. Gujarat Beverages. Such labelling on the bottles is legal obligation, in terms of the Weights and Measurement Act/Packaged Commodity Rules, and the goods can be said to be completely manufactured only after the label is put on the bottles. As such, it can be safely concluded that the product which emerged in the appellant's factory was not fully manufactured product, ready to be marketed and the same underwent further process of labelling in the factory of M/s. Gujarat Beverages. As such, the product having emerg....
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....cating authority. Similarly, I find that the credit of duty paid on the inputs was available to the appellant only on production of documentary evidence and Commissioner (Appeals), after holding in favour of the appellants on the above legal ground, could have directed them to produce documentary evidence, instead of rejecting the above plea by observing that no documents were produced. 18. As I have held that no duty is required to be confirmed against the appellants, the imposition of penalty upon them was also not justified. In view of the above discussion, the impugned order is set-aside and appeal is allowed with consequent relief to the appellants. DIFFERENCE OF OPINION (i) Whether the appellants has to be held as manufacturer of the Bisleri Branded Mineral Water, so as to confirm duty against them. (ii) Whether the appellant has to be held affixing the brand name 'Bisleri' on the goods supplied by them to M/s. Gujarat Beverages Pvt. Limited, so as to deny them the benefit of Notification No. 8/99. (iii) Whether the bottles filled and sealed by the appellants with water have to be held as intermediate good....
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...., so as to confirm duty against them. (ii) Whether the appellant has to be held affixing the brand name 'Bisleri' on the goods supplied by them to M/s. Gujarat Beverages Pvt. Limited, so as to deny them the benefit of Notification No. 8/99. (iii) Whether the bottles filled and sealed by the appellants with water have to be held as intermediate goods or the final excisable products ready to be marketed, so as to confirm duty against them. (iv) Whether the demand in question is required to be held as bared by limitation or the Revenue was justified in invoking the longer Period of limitation. (v) Whether, without prejudice to the above ground, the appellant is entitled to the benefit of Modvat credit of duty paid on the inputs or not. 21. I have carefully gone through both the orders of the Member (Judicial) and Member (Technical). On the "question of manufacture" "job work" the findings of Member (Judicial) are as follows : "8. As per facts on record, the brand name 'Bisleri' is owned by M/s. Aqua Minerals Limited, who had given franchisee rights for manufacturing and marketing of "Bisleri brande....