AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 456
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....ee would amount to manufacture as contemplated under Section 2 (f) (iii) of the Central Excise Act, 1944, for the purpose of availing CENVAT Credit? 3. Whether the activity of re-labeling with the name and without any hologram or marking while the re-labeling being done only for the logistics purpose by the assessee would amount to manufacture as contemplated under Section 2 (f) (iii) of the Central Excise Act, 1944, for the purpose of availing CENVAT Credit. 4. Whether the treatment to the already marketable products by the assessee would amount to manufacture as contemplated Section 2(f) (iii) of the Central Excise Act, 1944, for the purpose of availing CENVAT Credit. 5. When the assessee being both a manufacturer and a trader, mere filing of a Return under Rule 12 of Central Excise Rules, 2002 would amount to disclosure of all the details of CENVAT Credit and therefore, extended period of limitation is not invocable?" 2.When the matter was taken up for hearing, the learned Senior Counsel appearing for the Respondent/Assessee Mr.N.Venkataraman raised a preliminary objection of the maintainability of the present Appeals filed by the Revenue under Section 35G of the Central ....
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....er section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or] (b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Inserted by Finance (No.2) Act, 2014, w.e.f. 6-8-2014 [(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.]" 6.We find considerable force in the preliminary objection of the learned counsel for the Respondent/Assessee, particularly after insertion of sub-section (2) in Section 35L of the Act by Finance Act, 2014 with effect from 06.08.2014 whereby for the purposes of Chapter VI-A comprising from Sections 35 to 36 including clause 35A to 35R which provide for the mechanism of appeals under Chapter VI-A of the Centr....
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....question of law even the appeal before the Hon'ble Supreme Court will not be maintainable. 9.However, the question before us in the present appeals is as to whether the present appeals which raises a question of excisability itself or not, will be appealable before the Hon'ble Supreme Court or not. For that purpose, let us have a look on the findings of the learned Tribunal, in which the said controversy has arisen. Extract from the Order of Tribunal: "8.The issue revolves around the question whether the activity undertaken by the appellants tantamount to deemed manufacture as per Section 2(f)(iii) of the Central Excise Act, 1944. For better appreciation, the relevant section is reproduced:- "Section 2 (f) "manufacture" includes any process,- (i) ....... (ii) ...... (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer,] and the word "manufacturer" shall be construed accordingl....
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....then ready for packing. The metal pallet with goods received from vendors are kept near to the carton sleeve box for starting the packing process. The goods received from vendors are taken out from the metal pallets and stuffed inside the carton sleeve. Vinyl sheets are used to cover over the partition sheets with goods inside the carton sleeve. Top cover is provided on the carton sleeve and the goods supplied by vendors become packed in carton. The goods then packed inside the carton sleeve is ensured with the picking ticket before closing the packing box. The picking ticket will be scanned for generating the shipping mark sheet. After ensuring the details, the picking ticket will be affixed on the packed box. Thus, after packing, the shipping mark label is affixed on the box. This shipping mark label contains customer name, customer destination, customer order description, customer order number, case number, case dimensions, date of packing, manufacturer name. The packing list is also provided at the time of export which contains customer's order number, part number, party name and quantity. 13.Three types of packing are undertaken depending on the type of automobile part....
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....d of packing/ repacking or labelling of goods not amounting to the process of 'manufacture'. According to Revenue, the concept of 'Deemed Manufacture' is envisaged in the extended definition of 'manufacture' as defined in Section 2(f)(iii) of the Act. Section 2(f) is quoted below for ready reference. "[(f) "manufacture" includes any process,- (i) incidental or ancillary to the completion of a manufactured products; (ii) which is specified in relation to any goods in the section or Chapter notes of [the Fourth Schedule] as amounting to [manufacture; or] (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer,] and the word "manufacturer" shall be construed accordingly and shall include not only a person who employer hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;]" 1....
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....nct from an amount payable for work done upon or in respect of particular premises. 'Rate' is defined by Webster to be the price or amount stated or fixed for anything. The word 'rate' includes any toll, due, rent, rate or charge. It means the scale or amount of any other charges. The word 'rate' is used with reference both to a percentage or proportion of taxes, and to a valuation of property. 'Rate' is used in an Act declaring that the Legislative Assembly shall provide by law for a uniform and equal rate of taxation and assessment, applies to the percentage of fixation, as used in connection with 'taxation' and to the valuation of the property, as used in connection with 'assessment'. It is a valuation of every man's estate or setting down how every one shall pay, or be charged with, to any tax. By the use of the expression 'rate' a relation between the taxable income and the tax charged is intended, but the relation need not be of the nature of proportion of fraction. The Explanation to sub-section (5) of Section 35E of the Central Excise Act, the expression includes the determination of a question relating to the rate of duty, to the value of goods for the purposes of asse....
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....he question of whether any goods are excisable goods or not. (g) Whether a process is a manufacturing process or not, so as to attract levy of excise duty. (h) Whether a particular goods fall within which heading, sub-heading or tariff item or the description of goods as mentioned in column No. 3 of the Central Excise Tariff Act, 1985." (ii) Similarly, while dealing with the Customs Act provisions, the Karnataka High Court in a Judgment authored by the same Hon'ble Judge [Justice Mr.N.Kumar, J.] in the case of Commissioner of Customs, Bangalore V. Motorola India Limited, (2012) 275 E.L.T. 53 (Kar.), delivered about a year after the previous judgment, reiterated the similar position in para 40 and 41 as under: "40.Therefore, the expression 'rate' is often used in the sense of a standard or measure. 'Rate' generally is an impost, usually for current or recurrent expenditure, spread over a district or other local area and is distinct from an amount payable for work done upon or in respect of particular premises. 'Rate' is defined by Webster to be the price or amount stated or fixed for anything. The word 'rate' includes any toll, due, rent, rate or charge. It means the scal....
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....does not mean fraction of tax payable because what is the tax payable i.e., fraction payable is decided by the legislature. Once that is prescribed by the legislature in the Act, the Court cannot sit in judgment and alter or modify the said rate of tax. The Court has no jurisdiction to go into the correctness or otherwise of the rate of tax payable in the sense the rate prescribed by the legislature. Therefore, the argument that the rate of tax means only the rate at which tax is payable or a fraction is unsustainable. 41.Broadly the following disputes do not fall within the jurisdiction of High Court under Section 130 of the Act:- (a) Dispute relating to the duty of customs payable on any goods. (b) The value of the goods for the purposes of assessment. (c) A dispute as to the classification of goods. (d) Whether those goods are covered by an exemption notification or not. (e) Whether the value of goods for the purposes of assessment is required to be increased or decreased. (f) Whether what is imported or exported is goods which attracts customs duty." 14.In the previous judgment, while the eight categories of dispute were in the exclusion category of jurisdiction ....
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....of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes/of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value....