TaxTMI 
TaxTMI 
2017 (6) TMI 214
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....nt of duty. (ii) On 28.11.2005, the respondent moved Writ Petition No.2073 of 2005 before the Hon'ble Calcutta High Court on the ground that the Assistant Commissioner of Central Excise had no authority and/or jurisdiction to proceed with the matter as the respondent did not carry on any manufacturing activity. By order dated 28.11.2005, His Lordship disposed of the Writ Petition by directing the respondent No.1(i.e. the Assistant Commissioner, Central Excise) to decide the preliminary objection raised on behalf of the respondent herein, regarding the jurisdiction of the department to proceed in the matter under Central Excise Act before deciding any other issues in this matter on merit. (iii) A Show Cause Notice dated 21.03.2006 was issued by the Commissioner of Central Excise proposing demand of duty along with interest and penalty for the period from April, 2001 to September, 2005. (iv) The respondent/assessee again filed Writ Petition No.1719 of 2006 before the Hon'ble Calcutta High Court challenging the Show Cause Notice dated 21.03.2006. By order dated 27.11.2006, His Lordship was pleased to direct the respondent to furnish the copy of the order dated 15.03.2006 to the ....
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.... is also contended that in view of the impugned order of the Commissioner(Appeals), Show Cause Notice dated 21.03.2006 issued by Commissioner of Central Excise, Haldia, cannot be adjudicated, as Commissioner(Appeals) has set aside the basic issue as to whether the process amounts to manufacture or not. So, the Commissioner(Appeals) has exceeded his jurisdiction by deciding this matter. 5. The ld.Advocate appearing on behalf of the respondents strongly opposed the preliminary issue raised by the Revenue. He referred to various case laws in support of his contention that the appeal is maintainable against the communication/decision of the Assistant Commissioner before the Commissioner(Appeals) under the provisions of Section 35 of the Central Excise Act, 1944. 6. We find that the Hon'ble High Court by Order dated 28.11.2005 directed the Assistant Commissioner of Central Excise to decide the preliminary objection raised on behalf of the assessee regarding the jurisdiction of the Revenue to proceed in the matter under the Central Excise Act. It appears from the order dated 27.11.2006, being the subsequent Writ Petition that the Assistant Commissioner decided the issue by an order dat....
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.... Commissioner(Appeals) is bound to decide such statutory appeal under the provisions of law. So, there is no substance in the contention of the Revenue as stated in the grounds of Appeal. It is also stated in the grounds of appeal that in view of the purported order of the Commissioner(Appeals), Show Cause Notice dated 21.03.2006 issued by the Commissioner of Central Excise, Haldia cannot be adjudicated. We find that the Hon'ble Calcutta High Court by Order dated 27.11.2006 categorically directed that the adjudication proceedings shall be conducted strictly in accordance with law and in compliance with principles of natural justice. We are unable to understand that despite the categorical order of the Hon'ble High Court, the adjudication proceeding was not conducted. Therefore, the grounds of appeal on the preliminary issue of the Revenue is not sustainable. We hold that the appeal against the communication/order dated 02.01.2007 of the Assistant Commissioner of Central Excise is appealable before the Commissioner(Appeals) under the provisions of the Central Excise Act, 1944. 8. Now we would like to examine the matter on merit. The respondent-assessee imported Residue Wax, Semi-re....
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.... which comprises of lights in godown, office and air conditioner used in office. 9. The ld.Advocate demonstrated the process before the Bench and drew the attention to page 46, wherein 1. Slack/residue wax drum turned and slack wax/residue wax comes out. 2. Slack wax/residue wax take into mug and put on gunny cloth for wrapping. 3. Gunny folded with to cover slack wax/residue wax. 4. Material stacked one upon another for natural pressure. 5. Foots oil/residue wax spills from jute cloth which work as strainer and separated from thick wax (pressed wax) for straining, thinner cloth may be chosen for thinner foots oil. 6. Hydraulic pressure is also used if straining is to be expedited. 7. Gunny bag is opened press wax is kept separately. 10. The Assistant Commissioner observed that the respondent/assessee is engaged in the manufacture of Foots oil, Pressed Wax and Pressed Paraffin Wax classifiable under Tariff item No.27129090, 27122090 of Central Excise Tariff Act. The process of raw-materials i.e. Slack Wax and Residue Wax with the help of the machine run by power installed in the factory premises and produces the final products which are distinctly different in thei....
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....en the indication of the process is merely for the purposes of identifying the product and the rate which is applicable to that product. In other words, for a deeming provision to come into play it must be specifically stated that a particular process amounts to manufacture. In the absence of it being so specified the commodity would not become excisable merely because a separate Tariff Item exists in respect of that commodity. In this case the tariff, description also does not support the departmental stand. Nor do Chapter or Section Notes. Regarding some relates processes CEGAT held otherwise. In Manivel Textile Printers Vs. CCE, [2000(39) RLT 328(CEGAT)] it held that squeezing out of water and drying of yarn by using padding mangles operated by motor and hydroextraction machine is not ancillary to the process of manufacture. In Andreena Industries Vs. CCE CEGAT Larger Bench [RLT (L.B.-CEGAT)-326] held that drying of wet yarn by using hydro-extract or/and electrically operated blower for squeezing out excess water are not manufacturing activities. In Indian Rare Earths Ltd. Vs. CCE, [2001(46) RLT 923(CEGAT-Kol.)] it was held that separation of mineral sands by physical and mechan....
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....comes excisable. The end product becomes excisable only if there is manufacture. * It has been held by the Hon'ble Supreme Court in the case of Hindustan Poles Corporation v. Commissioner of Central Excise reported in 2006 (196) E.L.T. 400 (S.C.) at Para 37 which is as under : "37. We have heard learned counsel for the parties at length. We have also carefully perused the pleadings and examined a series of cases decided by this Court. The following conclusions are irresistible. (1) The process carried out by the appellants do not change the basic identity of original character of M.S. Welded Pipes to make it a new marketable product leading to manufacture as defined under Section 2(f) of the Central Excises Act, 1944. (2) The burden to prove manufacture is always on the Revenue. In the instance case the Revenue has completely failed to prove that the activity carried out by the appellant amounts to manufacturing. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to residuary entry. (3) The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specifie....
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....ng of polymers and additives to heated Bitumen, resulting in emergence of Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) would not amount to manufacture, even PMB and CRMB are classified in different sub-headings. It has been further observed that the impugned process did not result in transformation of Bitumen into new product. The relevant portion of the said decision is reproduced below:- "19. We may now examine whether the process in question, otherwise amounts to manufacture under the expansive Section 2(f) of the Act. It is trite to state that "manufacture" can be said to have taken place only when there is transformation of raw materials into a new and different article having a different identity, characteristic and use. It is well settled that mere improvement in quality does not amount to manufacture. It is only when the change or a series of changes take the commodity to a point where commercially it can no longer be regarded as the original commodity but is instead recognized as a new and distinct article that manufacture can be said to have taken place. In this behalf the following observations by the Constitution Bench of this Court in Tu....
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....and the end-use of the toilet rolls, the table napkins and the facial tissues remains the same, namely, for household or sanitary use. The predominant test in such a case is whether the characteristics of the tissue paper in the jumbo roll enumerated above is different from the characteristics of the tissue paper in the form of table napkin, toilet roll and facial tissue. In the present case, the Tribunal was right in holding that the characteristics of the tissue paper in the jumbo roll are not different from the characteristics of the tissue paper, after slitting and cutting, in the table napkins, in the toilet rolls and in the facial tissues." (Emphasis supplied by us) 22. In Deputy Commissioner Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers, 1980 (6) E.L.T. 343 (S.C.), a three Judge Bench of this Court, while deciding whether conversion of pineapple fruit into pineapple slices for sale in sealed cans amounted to manufacture, observed as follows :- "4..Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and inde....