TaxTMI 
TaxTMI 
2022 (1) TMI 496
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellate Tribunal, South Zonal Bench, Bengaluru ['CESTAT' for short] raising the following substantial questions of law: 1. Whether the Tribunal is justified in holding that labelling and repacking of the imported goods amounts to manufacture? 2. Whether the order of the Tribunal is justified in holding that similar goods does not necessarily mean the same goods as per CBEC Circular.07/2006? 3. Whether the Tribunal was justified in holding that Chartered Accountants Certification is sufficient proof for co-relating to the transfer and receipt of goods? 4. Whether Tribunal is in error in following the judgment of Nishith Impex Pvt. Ltd., reported in 2008 (223) ELT 192 [TRI-Kol]? 5. Similarly, whet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ginal No.22/2008 dated 05.11.2008. Being aggrieved, the appellant preferred an appeal before the CESTAT which came to be allowed setting aside the demands made by the Adjudicating Authority. Aggrieved by the said order, the appellant has preferred this appeal. 3. Learned counsel for the Revenue argued on four points. Firstly, that the main condition to be fulfilled by an EOU for entitlement to concessional rate of duty on import or duty free procurement of raw materials is specified in condition No.3 of the Notification dated 03.06.1997 [Notification No.53/1997]. Condition No.4 of the Notification No.52/2003 dated 31.03.2003 stipulates that the Deputy Commissioner of Customs or Assistant Commissioner of Customs subject to certain conditi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....L.T., 171 (S.C.)] 3. Commr. Of C. Ex., Mumbai V/s. BOC [i] Ltd., [2008 (226) E.L.T. 323 (S.C.)] 4. Mercantile Company V/s. Commissioner of C. Ex., Calcutta [2007 (217) E.L.T., 330 (S.C.)] 8. Learned counsel for the respondent - assessee argued that 100% EOU in diverting raw material to another 100% EOU for manufacture, is only a prodedural lapse and on the ground of not obtaining permission for such diversion, exemption under the Notification No.53/97-CUS cannot be denied. To buttress this arguments, the finding of CESTAT Mumbai in the case of Sunil Kumar Jain and Others vs. CCE & C, Nagpur - I reported in 2008 (85) RLT 105 (CESTAT - Mum.), which has been confirmed by the Hon'ble Apex Court reported in 2015 (326) E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ents Pvt. Ltd., reported in 2013 (290) ELT 543 (Bom.). 10. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record. 11. There is considerable force in the arguments advanced by the learned counsel for the respondent inasmuch as the goods said to have been diverted from Bengaluru unit to Venkatapur unit, both being 100% EOUs. On this inter-unit transfer of the raw material, the issue is squarely covered by Sunil Kumar Jain and Others, supra, confirmed by the Hon'ble Apex Court. The finding of the Tribunal is based on this judgment and the same cannot be faulted with. 12. Similarly, no exception can be found with the reasons assigned by the Tribunal in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....though in a modified form. Similar view is taken in Aman Marble Industries (P) Ltd., supra. 16. It is significant to note all these judgments relates to Section 2(f) of the Central Excise Act, 1944. It is not in dispute that in the present case, we are dealing with 100% EOU, wherein Foreign Trade Policy is applicable, wherein Chapter - 9 provides for definition clause. In terms of the said definition clause - 9.37, "manufacture" means to make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, re-packing, polishing, labelling, re-conditioning repair, remaking, refurbishing, testing, calibration, ....