TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 227
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....he appeals for disposal. 6. Thus, the application for rectification of mistake stands disposed of an indicated herein above." 2. Assailing the Miscellaneous order, the appellant filed Central Excise Appeal No. 21 of 2019 before the High Court for State of Telangana which was disposed of on 11 March, 2020 with the following observations: "22. Therefore, we find no merit in this Appeal, and it is accordingly dismissed. However, it is made clear that both parties would be entitled to argue all points of law and fact available to them, when the appeals are reheard by the Tribunal pursuant to the order dated 25.03.2019 in Miscellaneous Application No. M/30161/2019. No order as to cost." 3. The matter has now been listed and we have heard both sides and perused the records. 4. We find that the main contention of the appellant before the High Court in Central Excise appeal was that only one application seeking rectification of mistakes E/ROM/30090/2019 dated 18.1.2019 was filed by the appellant seeking rectification of mistake in the final order in appeal E/684/2009 and the Department had not filed any application seeking rectification of mistake. Application No. E/ROM/30086/2019 w....
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....led by the assessee appellant which was received in the Tribunal on 18.1.2019 which was numbered E/ROM/30090/2019. Another miscellaneous application was also filed by the assessee applicant seeking early hearing of the aforesaid application for rectification of mistake also in both the appeals No. E/684/2009 and E/827/2009 which was received in the Tribunal and was numbered E/Misc./30086/2019. These two miscellaneous applications were disposed of by the Miscellaneous order dated 25.3.2019. However, in the heading E/Misc./30086/2019 was wrongly mentioned as E/ROM/30086/2019. A further mistake in the heading was that instead of mentioning both the applications against both the appeals (as they were filed by the assessee), Miscellaneous application 30086/2019 was shown against Appeal No. E/827/2009 and miscellaneous application 30090/2019 was shown against E/684/2009. We also find that there was inaccuracy in the first sentence of the Miscellaneous Order which says "these two applications are seeking rectification of error in Final Order No. A/30732 & 30733/2019 dated 19.7.2018. It should have been written as application E/ROM/30090/2019 and the application E/Misc./30086/2019 seeking ....
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....f packing and labeling or relabeling of Activated Carbon amounts to manufacture and is chargeable to duty. Accordingly, differential duty of Rs. 1,34,38,269/- was demanded on the Activated Granular Carbon valued at Rs. 8,20,46,435/- which was cleared without payment of duty during the period 2004-2005 to 2007-2008 under Section 11A of the Central Excise Act read with Rule 8 of the Central Excise Rules. Interest on the aforesaid amount was also demanded and penalty was proposed to be imposed under 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002 for contravention of Rules 4, 6, 8 and 9. 10. The Commissioner passed the impugned order confirming a demand of only Rs. 35,93,990/- along with interest and imposing a penalty of equal amount under Section 11AC. The remaining part of the demand was dropped. 11. Revenue is aggrieved that the Commissioner dropped the remaining part of demand on the ground that certain purchase invoices produced by the assessee are themselves in retail packages of 50 kgs, 45 kgs, 40 kgs. etc. According to the Revenue, this conclusion of the Commissioner was contrary to the findings in the impugned order in paragraph 21 wherein it was held t....
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....l packages of 50 Kgs, 45 Kgs, 40 Kgs, 35 Kgs, 30 Kgs, 25 Kgs and 20 Kgs etc., hence abatement is required to be given on the rest of the quantity excepting 6292 bags, which is liable to duty, for the reasons given hereunder. 15. The sale of 6292 bags of 50 Kgs in excess of 50 Kgs bags purchased, as discussed above is possible only, if the material is received in bulk quantities. Hence, I am constrained to conclude that they had not received the subject goods in any retail packages but the material received in bulk were unpacked and repacked to suit the needs of the customers. 20. The sale invoices clearly indicate that sales were affected in retail form only, which is possible only after converting the bulk in to marketable form. As per Annexure I, the total stock details, produced by the assessee along with written submissions dated 18.02.2009, it is clearly mentioned that they have packed 3840 bags of 50 KGs during the year 2005-06 and 8744 bags of 50 KGs during the year 2006-07 after aggregation of 25 Kgs bags. This statement of the assessee is contradictory to their earlier stand that they sold the goods as such and there was neither packing nor repacking. In view of the ab....
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....Kgs 5. 85 16 2007 M/s Ruchira Chemical Corporation 28.03.2007 50 Kgs 6. 70 10 2007 M/s Ruchira Chemical Corporation 06.12.2007 50 Kgs 17. Learned counsel for the appellant also submitted that the demand is barred by limitation as there is no evidence of suppression of facts and activities were known to the Department. 18. We have considered the submissions advanced by both the sides. 19. The short point to be decided in this case is whether from the evidence available, the appellant had labelled or relabeled and re-packed activated carbon from bulk to retail or carried out any other process to render it marketable so that its activities fall under Chapter Note 9 to Chapter 38 of the Schedule to Central Excise Tariff Act, 1985. If so, whether it would amounts to manufacture and the appellant is liable to pay Central Excise duty and not otherwise. 20. It is undisputed that the appellant is selling activated carbon in bags with its own name pre-printed on them. Thus, if the appellant is selling the goods with its own name on the packets, it is labeling the product. 21. The next question is whether it is also packing from bulk to retail packs....