TaxTMI 
TaxTMI 
2004 (5) TMI 174
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....fore the actual manufacturing operation could be conducted. The trials were completed using the 32 MTs of imported HDPE in the bagging plant and extruder section of the plant. (b) The officers on 2-8-1992 on a revisit, earlier having taken cognisance on 1-8-92 of the above-said trial activity detained the following goods : (i) Various grades/qualities of HDPE in 436 bags (approx. 6540 kgs) in mixed condition filled with HDPE granules, chips, flaks, and fines etc. (ii) Relene HDPE granules of a produce of Reliance (Reliance Petrochemicals Ltd., Hazira) packed in standard pack of 25 kgs. (iii) HDPE granules....
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....al. (e) Use of imported HDPE in the trial run of the Capital Plant and Machinery installed is not in conflict. Items used in trial runs are not eligible inputs or to credit under Modvat. They cannot be inputs [see Flex Engineering Ltd., 2004 (61) RLT 161] where Revenue reliance on Allahabad High Court Order dated 26-8-2002 in reference was upheld this would deny the eligibility as inputs to the imported HDPE granules. (f) Once the imported granules are not an input, they are not "raw material" and manipulation thereof resulting in bagged HDPE, subsequent stages emergence from the trial, in flaks, granules, lump form cannot be considered, as to be covered by the concept of, manufacture following the Supreme Court's decision in the case....
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.... quality still was coal and not exigible to excise duty." and in view of the fact that the Chapter Note 6 to Chapter 39 of the Central Excise Tariff Act, 1985 Schedule would imply that the coverage of manufacture, as prescribed by this Note, would cover the levy under the Central Excise Act, 1944. This plea of the ld. DR cannot be accepted since the tests prescribed by the Supreme Court of the levy on manufacture under the Central Excise Act, 1944 would be applicable & have to be satisfied, even in cases where the activity is attracted into the ambit of manufacture "by chapter notes in the Schedule to Central Excise Tariff Act, 1985 [see C.C. Excise, Patna v. Tata Iron & Steel Co. Ltd., 2004 (165) E.L.T. 386 (S.C.)]. (h) In the presen....
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....shed, as no attempt to remove the goods is established and concluded, following the catena of decisions of this Tribunal after Bhillai Conductors' case [2000 (125) E.L.T. 781] confiscation cannot be upheld even those goods are held to be exigable and manufactured. The ld. DR's reliance on Kirloskar Brother's case [1988 (34) E.L.T. 30 (Bom.)] is not approved as in the facts of this case, since in Kirloskar Brothers' case [1988 (34) E.L.T. 30 (Bom.)] the fact was of a non-duty paid removal is exigible goods read with the non accountal (see Para 4 of Kirloskar Brothers' case) and not a case, as in this case, of a simplicitor non-accountal. The Andhra Pradesh High Court in the case of Southern Steels, 1979 (4) E.L.T. J402 have held that there w....