TaxTMI 
TaxTMI 
2019 (10) TMI 683
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....notices were issued to the Thane unit for the period October 1992 to December 1999 proposing to recover additional duty on the ground that the value at which the goods are cleared to the Daman unit is lower than the comparable market price. This Tribunal vide Order dated 10.04.2014 reported in 2014 (307) ELT 314 (Tri-Mumbai) set aside the demand raised on the Thane unit and upheld the valuation at which the goods were cleared to the Daman unit. The said order has been accepted by the department and attained finality. 1.3 Simultaneously a show cause notice was issued to the Thane unit proposing to recover central excise duty of Rs. 5,35,74,360/- on certain cash amount purported to have been recovered towards printing charges. The Commissioner of Central Excise, Mumbai IV vide Order in Original dated 04.12.1998 noted that since the issue was in relation to the Daman unit, the show cause notice issued by the Thane unit was without jurisdiction. Accordingly, a fresh show cause notice was issued on 12.01.1999 to the appellant herein for recovery of Rs. 5,20,18,003/- . 1.4 The show cause notice culminated into OIO No. 2/MP/Vapi/2000 dated 11.09.2000 by which the duty sought to be recov....
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....d to Call Book Register on 09.12.2004 to await the decision of Supreme Court in the case of Rajpurohit GMP India Limited, vs. CCE, Surat. 1.9 Thereafter, approximately 14 years thereafter, personal hearing notice was issued to the appellant at their Mumbai address on 18.06.2018. In response, an adjournment was sought by the appellant. Thereafter various correspondences were exchanged between the adjudicating authority and the authorised representative of the appellant for obtaining the copy of SCN and relied upon documents as has been mentioned the Impugned order. Copy of the SCN was thereafter given to the appellant. Since, the Witnesses did not appear for cross examination, the appellant requested the adjudicating authority to proceed with the hearing of the show cause notice as the same was pending for over 20 years. 1.10 The impugned order thereafter came to be passed by the adjudicating authority which has been challenged by way of the captioned appeal. 2. Shri Jitendra Motwani, Ld Counsel appearing on behalf of the Appellant made following submissions: - Activities carried out at Daman unit did not amount to manufacture and therefore, even if the allegations mentioned in....
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....n call book for a period of around 10 years thereafter. - He further submitted that the reliance placed by the adjudicating authority on the decision of the Hon'ble Supreme Court in the case of Siddhartha Tubes v. CCE reported at 2000 (115) ELT 32(SC)wherein it is held that even where the process was not amounting to manufacture the expenditure incurred upto the factory gate clearances were includible in the assessable value is not correct inasmuch as the Hon'ble Supreme Court in later decision viz., Maruti Suzuki India Ltd., v. Commissioner of Central Excise, New Delhi has held that to invoke the valuation provisions under Section 4, there must be manufacture under Section 3. He further submitted that the decision in Siddhartha Tubes (supra) cannot be applied to the present case as facts are completely different therein in as much as in that case the pipes were manufactured and activity of galvanisation was carried out in the same factory whereas in the present case the activity of cutting/slitting and printing of already manufactured PVC sheets was carried out at Daman factory and since the same did not amount to manufacture, Daman unit was not required to obtain central excise....
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....d out at the Daman factory. It is evident from the show cause notice, that the Appellant used to carry out post calendaring operations like checking/inspection of PVC films/sheets, cutting/slitting, printing and packing jumbo rolls into smaller rolls. The said fact is clear from the Show Cause Notice dated 12.01.1999 issued to the Appellant. Even the impugned order has confirmed the demand against the Appellant after holding that the aforesaid activity of printing carried out at Daman unit amounted to manufacture. 4.1 Keeping the above fact in mind, the moot question that needs to be decided is whether the activity carried out in the Daman factory of cutting/slitting of jumbo rolls of plain PVC Sheets into smaller rolls and printing of the same amounts to manufacture or otherwise. 4.2 We find that this Tribunal in the case of Bombay Kunststoff Pharma Supplies Pvt. Ltd v. CCE final order no. A/11571/11578/2018 dated 30.07.2018 has decided a similar issue where it is held as under: "On similar issue many more judgments cited by the Ld. Counsel, wherein the same view has been taken. As regard, the Ld. AR's submission that since the printed sheet has a different use and marketabili....
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....ber Coated Paper Ltd. 2015 (319) ELT 357 (SC) d. UOI vs J.G. Glass Industries 1998 (97) ELT 5 (SC) e. UOI vs Alembic Glass Industries Ltd. 2010 (259) ELT 8 (SC) 4.4 Apart from the above, it would be important to reproduce the observation of the Adjudicating Authority in Para V, Internal Page 9 of the OIO: (V) On 09.12.2004, the impugned show cause notice was transferred to the Call Book Register citing the case of M/s. Rajpurohit GMP (I) Ltd. Silvassa and Others v. CCE Surat which was pending before the Hon'ble Apex Court for decision on the issue as to whether cutting and slitting of jumbo roll amount of manufacture or not. The impugned show cause notice was retrieved from the Call Book Register on 06.2.2018. A fresh personal hearing was granted on 18.06.2018 and a copy of PH letter was also sent to assessee's Mumbai address besides Daman address. In response, M/s. Economic Laws Practice vide their No. ELP/JHM/VSC/44/2018 dated 15.06.2016, on behalf of the assesse sought adjournment in the matter." 4.5 It is clear from the above that the show cause notice was transferred to the Call Book Register citing the case of M/s. Raj Purohit GMP India Limited v. Commissioner of Cent....
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....td. (supra) was identical to the case in hand. Similar issue was favourably decided by the Andhra Pradesh High court in the case of CCE & C, Hyderabad -IV V.s Rasmi Wax Coated Paper & Printing Industry reported in 2015 (325) E.L.T. 292 (A.P.). 4.7 The Adjudicating Authority in the impugned Order has held that the activity of printing amounts to manufacture by placing reliance on the decision of the Hon'ble Supreme Court in the case of Laminated Packaging v. CCE [1990 (49) ELT 326 (S.C.). On perusing the said decision we are of the view that the same will not be applicable to the facts of the present case. In Laminated packaging (supra) the activity of lamination of papers was held to be amounting to manufacture on the basis of the evidence led in support of the submission that plain kraft paper and laminated kraft paper are distinct and separate products known in the market. whereas in the present case, after the activity of cutting/printing carried out on already manufactured PVC sheets does not bring about any new product in existence as PVC sheets remain PVC sheets only. The SCN has not even alleged that a new commodity comes into existence after the activity of cutting/slittin....
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....it receive already manufactured PVC sheets. In view thereof once it is held that PVC sheets cleared by Thane unit was a final product and activity of cutting/slitting and printing carried out at Daman unit did not amount to manufacture, then question of paying duty on printing charges by the Appellant did not arise. 4.10 Apart from the above we note that the Hon'ble Supreme Court in the case of Maruti Suzuki India Ltd., v. Commissioner of Central Excise, New Delhi reported in 2015(318) ELT 353 (SC) has held as under: 19. Shri Guru Krishna Kumar, learned senior counsel, then cited Siddhartha Tubes Ltd. v. Commissioner of Customs & Central Excise, Indore (M.P.) [(2005) 13 SCC 559 = 2006 (193) E.L.T. 6 (S.C.)]. This case again concerned manufacture of galvanised pipes. This Court, in a very significant passage, stated : "At the outset, we may state that value is the function of price under Section 4(4)(d)(i) of the Act. The concept of "valuation" is different from the concept of "manufacture". Under Section 3 of the Act, the levy is on the manufacture of the goods. However, the measure of the levy is the normal price, as defined under Section 4(1)(a) of the Act. It is not dispute....
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....f one Mr. Om Prakash who was working with the Auditors of Star Industries, Thane. Internal page 8 and 9 of the SCN reads as under: The demand is worked out on the basis of records/files no. 2 & 5 seized under panchanama on 11.7.96 from the residence of Shri. Om Prakash S. in the said files the assessee have maintained information of receipt of "F/FF" for the year 1993-94, 1994-95, 1995-96 & 1996-97 (till June 96'). Shri Om Prakash S, employee of Auditor of M/s Star Industries Ltd. in his statement recorded under section 14 of Central Excise Act, 1944 on 5.12.96 (Annexure III(xvi)) has stated that file no. 2 & 5 are seized from his residence on 11.7.96 contains information of "F/FF" transactions and monthwise calculation in respect of M/s Star Industries Ltd. Shri Om Prakash has signed all the papers of these files in a token of custodian of the record and attached a note in each file. 4.13 Apart from the above statements of employees of Star Industries, Thane viz., Shri K.M. Mathew, Sales Manager, Star Industries Limited. Statement of Mr. J.J. Baria and Mr. Rohit Amin, Directors of Star Industries, Thane have been relied upon in support on allegations pertaining to undervaluatio....
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....e of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the persons connected with the manufacturing activities and such statements were retracted within no time of their recording. The Tribunal also noted the fact that the requisite opportunity of cross examination was also not made available so as to bring to the fore the true picture and therefore, it concluded against the Revenue observing that not permitting the cross-examination of a person in-charge of records of M/s. Sunrise Enterprises and absence of other cogent and positive evidences, would not permit it to sustain the demand of Rs. 1.85 Crores raised in the Demand notice and confirmed by both the authorities below." 4.15 The aforesaid decision has been upheld by the Hon'ble Supreme Court in Commissioner v. Saakeen Alloys Pvt. Ltd. - 2015 (319) E.L.T. A117 (S.C.). 4.16 Further this Tribunal in Rutvi Steel & Alloys v. Commissioner of Central Excise, Rajkot 2009 (243) E.L.T. 154....
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....e impugned order on the ground of delay. He has placed strong reliance on the decisions of Hon'ble Bombay High court in the case of Premier Limited (supra) which has been upheld by the Hon'ble Supreme Court. It is his submission that the Adjudicating Authority has wrongly held that the delay in passing the impugned order is because of the Appellant and drew our attention to a chart forming part of his written submission to state that there was no delay on the part of the Appellants. Admittedly in the present case a show cause notice was issued on 12.01.1999 and the same was adjudicated by the impugned order dated 05.02.2019 i.e. more than 20 years later. In between in first round of litigation an OIO was passed on 11.09.2000 which was set aside by this Tribunal in May 2001 when the matter was remanded for de novo adjudication. Though the Remand Order was passed in 2001, de novo hearing was held after 2 years viz., on 12.06.2003. In between the Appellant vide letter dated 19.09.2001 sought cross examination in compliance of directions given in the remand order. Thereafter, in 2003, the Appellant in response to Personal hearing notices appeared before the adjudicating authority on 22....
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....ange their affairs and in the event they are aggrieved, they would avail of the further remedies. Therefore, this is a power coupled with a duty and which the Revenue officials must realise. The earlier it is the better it would be for all concerned. 10. The second aspect which requires elaboration is, if the understanding of the Revenue is that it has to wait endlessly for the assessee to appear and make submissions, it is not the assessee's right to delay the matter. There is no vested right in prolonging the proceedings and none can claim that the law permits this course. Adjournments may be sought frequently but they are not to be granted liberally. That gives impression that the Revenue is not interested in proceeding with the matter, or rather has a vested interest in assisting the assessee. In the case of Sangram Singh v. Election Tribunal, Kotah and Another, reported in AIR 1955 SC 425, the Hon'ble Supreme Court was required to explain as to what is an ex parte order. 11. Therefore, once the assessee is given sufficient opportunity to remain present, to argue his case, either by himself or with the assistance of an Advocate, then, the Revenue would be justified, if the ....