TaxTMI 
TaxTMI 
2021 (6) TMI 714
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....under section 11A of Central Excise Act, 1944 for recovery of duties arising from contract entered into between M/s Y & Associates and M/s Godrej Hygiene Products Ltd on 22nd June 2007 for retail packing of 'baby and clinical diapers' and 'sanitary napkins' that continued till June 2011. In accordance with the agreement, the latter provided 'diapers' and 'packing material' along with specifications to the former who were to undertake packing and storage with responsibility for compliance with legal prescriptions. It was alleged that 'baby diapers' and 'sanitary napkins' were rendered liable to duties of central excise in notification no. 10/2010-CE dated 27th February 2010 by inserting these descriptions at serial no. 96B and serial no. 96C....
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....Central Excise Act, 1944, the impugned order, drawing upon the meaning assigned to 'rendered' and 'marketable' in the decision of the Tribunal in Lakme Lever Ltd v. Commissioner of Central Excise [2001(127) ELT 790 (Tri-Mumbai)], concluded that the liability did devolve. 3. Learned Counsel for appellants contests coverage within the Third Schedule to Central Excise Act, 1944 sans which the components that make up 'manufacture' in section 2(f) of Central Excise Act, 1944 are irrelevant in determining excisability. It was pointed out that 'Cleansing or facial tissues, handkerchiefs and towels of paper pulp, paper, cellulose wadding or webs of cellulose powders' intended to be covered by section 2(f)(iii) of Central Excise Act, ....
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.... effect from 27th February 2010 or that the goods imported, in bulk by M/s Godrej Hygiene Products Ltd, were repacked into retail units by M/s Y & Associates. Reliance was placed on the decision of the Hon'ble High Court of Calcutta in Naffar Chandra Jute Mills Ltd and another v. Assistant Collector of Central Excise [1993 (66) ELT 574 (Cal)]. 5. We find that dispute has its origins in the inclusion of the impugned goods, with effect from 27th February 2010, in notification no. 4/2006-CE dated 1st March 2006 prescribing effective rates of duty and the undisputed fact that 'baby diapers' and 'sanitary napkins', imported in bulk, are repacked for the retail market. The definition of 'manufacture', which includes any process '(iii)....
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....pkins and napkin liners for babies and similar sanitary articles' corresponding to sub-heading no. 4818 40 of the Schedule to Central Excise Tariff Act, 1985 while the goods referred to in serial no. 55 of the Third Schedule to Central Excise Act, 1944 are covered by an entirely different residuary tariff item of the Schedule to the Central Excise Tariff Act, 1985 within another categorization at the level of sub-headings, does not appear to have been given due evaluation by the adjudicating Commissioner. 6. It is apparent from the schema of 'deemed' manufacture that emergence of goods of another description from any process to which the enumerated goods are subjected to would take it outside the scope of 'deemed' and requiring conformit....
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....ent that does attract excisability once again. For the impugned order to appropriate that logic for the proposition that the essence of marketability afforded by a process suffices, and to the exclusion of any or all other conditions in a statute, for goods to be deemed to have been 'manufactured' is but semantic contortion for enabling overreach by the tax administrator. 8. The decision of the Tribunal in re Kohinoor Tissue Converting Co, in relation to enumeration of goods that are required to be assessed under section 4A of Central Excise Act, 1944 and, though not in the context of comparison of the relevant heading in the Schedule to Central Excise Tariff Act, 1985 with description in Third Schedule of Central Excise Act, 1944, holdi....