TaxTMI 
TaxTMI 
2021 (8) TMI 696
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....Fishnet Twine, falling under Tariff Item 5402 19 90 and 5402 61 00, respectively, of the First Schedule to the Central Excise Tariff Act, 1985 [Tariff Act]. 4. The Nylon Yarn manufactured by the appellant in its factory, is partly cleared for domestic consumption on payment of duty and partly consumed captively for further manufacture of Nylon Fishnet Twine within the factory and thereafter cleared on payment of duty against Tariff Item 54026100, upon availment of CENVAT credit. Since the factory of the appellant (i.e. Manali Plant) has the facility to manufacture Cheese Type Fishnet Twine only and does not have adequate facilities for making desired quantity of Hank Type Fishnet Twine as per the market demand, the appellant also clears a part of internally manufactured Nylon Yarn upon payment of duty of third party job-workers for conversion of Nylon Yarn into Nylon Fishnet Twine as per agreement with converters on principal-to-principal basis. 5. The job-workers, after converting such Nylon Yarn into Nylon Fishnet Twine, clear part quantity of Twine directly to the depots of the appellant and return part quantity to the appellant's factory, which is thereafter sold/traded b....
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....erefore, not liable to pay duty on such Nylon Fishnet Twine manufactured and cleared by the job-workers, who had availed exemption benefit under the Notification dated 09.07.2004. The relevant portion of the order is reproduced below: "22.1. Manufacture of Twine takes place at the job workers' end/premises and accordingly, the job workers are the manufacturers of the Twine in their own right. Since, they do not have the facility to manufacture Yarn in their factory, and they have not availed the Cenvat Credit facility, the job workers are eligible to avail the benefit of exemption under Notification no. 30/2004 - CE, dated 09-07-2004 [Sl. No. 6] and so cleared the twine, without payment of duty. 22.2 'Sale' under the Central Excise Act, 1944, is mere transfer of the possession of goods. In the case on hand, the transfer of the possession goods involved in the transaction for cash, is deemed to be sale, in as much as the job workers receive job charges from the assessee, at the conversion rate agreed between the parties, for the job work undertake by them. 22.3 Even if there is no sale or transfer of ownership or title of goods involved in the transaction,....
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....aised before the Commissioner nor is it in dispute that the order dated 31.05.2018 passed by the Assistant Commissioner has attained finality. 13. The submission advanced by the learned Authorized Representative appearing for the Department that in the face of the order dated 18.05.2016 passed by the Commissioner, the subsequent order dated 31.05.2018 passed by the Assistant Commissioner should be ignored cannot be accepted. Both the Commissioner and the Assistant Commissioner adjudicated upon the show cause notices that proposed a demand for the same reasons. If the Department was aggrieved by the order dated 31.05.2018 passed by the Assistant Commissioner, an appeal could have been preferred but that was not done. It is for this reason that the submission advanced by learned Authorized Representative of the Department that since the subsequent order passed by the Assistant Commissioner does not discuss the earlier order dated 18.05.2016 passed by the Commissioner, the present appeal should be heard on merits cannot also be accepted. 14. It has been held by a Division Bench of the Tribunal in Popular Carbonic, Rosmerta Technologies and Mohak Hi Tech Specialty Hospital that i....
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....placed on the decision of the Supreme Court in Damodar J Malpani vs. CCE , wherein it was held: 3. It appears from the records that several letters were written by the Appellants to the Excise Authorities requesting that a sample of the Appellants‟ product may be chemically analysed at the Appellants‟ cost for the purpose of determining whether the Appellants‟ product or process in any way differed from the product and process of M/s. Chandulal K. Patel and Company. However, the Excise Authority decided against the Appellants without heeding such request. On 4-8- 88 a decision was taken by the Assistant Collector to classify the Appellants‟ product under Tariff Heading 24.04. On 11-8-88 a sample of the Appellants‟ product was taken by the respondents but returned within one week without testing on the ground that the issue was being finalised by the Assistant Collector. In the appeal preferred to the collector, the Appellants again raised the issue specifically that the process followed by and the product of the Appellants were identical with that of M/s. Chandulal K.P. Patel and Company and that the Appellants product should be similarly clas....
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....nsidering whether the product and process followed by M/s. Chandulal K. Patel & Co. is the same as that of the Appellants‟ product for the chemical analysis if not already done. The Tribunal will thereafter consider the question of classification of the appellants‟ product having regard to the classification of "Karta ChhapZarda‟ the chemical analysis report and any other material that may be placed before it by the respective parties. 18. In this view of the matter, when the Commissioner in regard to the appellant own case for a subsequent period held that Service Tax cannot be levied under the category of BAS, which order of the Commissioner attained finality, the Department cannot be permitted to contend in this appeal that Service Tax under the category of BAS can be levied upon the Appellant." 29. This issue was also examined by the Supreme Court in Commissioner of C. Ex., Hyderabad vs. Novapan Industries Tries Ltd. [2007 (209) E.L.T. 161 (S.C.)] and the relevant portion of the judgment is reproduced below: "11. In our view, the point in issue is squarely covered by the judgment of this Court in MRF case [(1986) Suppl. SCC 751] read....