2010 (8) TMI 366 - AT - Central Excise

Manufacture Deemed manufacture - As per the relevant Chapter Notes (chapter 29 and 38), the repacking of goods from bulk packs to retail packs, re-labelling of the containers or the adoption of any other treatment to render the products marketable to the consumer amounted to manufacture . - With regard to the goods covered by Heading 33.07, the deeming provision was introduced only w.e.f.1-3-2003with the amendment of Section 2(f) (definition of manufacture ) of the Central Excise Act. - for the period prior to 1-3-2003, there was no deemed manufacture in respect of repacking, re-labelling etc. of bulk packs of such goods and, therefore, during such period, the appellant was not liable to pay duty on the retail packs. Appellant is entitled to exemption from payment of duty on the retail packs of goods falling under Headings 33.01 and 33.02 for the entire period of dispute and partial exemption from payment of duty in respect of the retail packs of goods falling under Heading 33.07, the duty liability in the latter case arising only w.e.f. 1-3-2003. It goes without saying that, when duty is paid on the finished goods (retail packs), CENVAT credit of the duty paid on inputs should be allowed to the manufacturer. This aspect should also be covered in de novo proceedings. As regards penal liability under Section 11AC, needless to say that its re-determination is called for in de novo proceedings.

Summary

Issues:
Waiver of pre-deposit and stay of recovery in respect of duty and penalty; Duty liability on repacked goods falling in Chapters 29, 33, and 38 of the CETA Schedule; Applicability of 'deemed manufacture' in repacking activities; Quantification of duty liability for goods under different headings; Entitlement to exemption from duty payment for specific goods; Re-quantification of duty amount by the original authority; Penal liability under Section 11AC.

Analysis:
The appellant filed an application seeking waiver of pre-deposit and stay of recovery regarding duty and penalty. The Tribunal decided to dispose of the appeal without pre-deposit, focusing on the period of dispute from April 2001 to October 2004. The appellant was involved in converting bulk packs of excisable goods into smaller retail packs during this time without paying duty on the retail packs. The original authority confirmed a duty demand of Rs. 9,01,534/- and imposed an equal penalty under relevant sections of the Central Excise Act. The appellant contested this demand, leading to the present appeal after the rejection of their appeal by the Commissioner (Appeals).

During the activity of repacking bulk packs into smaller retail packs, the appellant acknowledged the applicability of 'deemed manufacture' for goods in Chapters 29 and 38 but contested the same for goods in Chapter 33. The Tribunal analyzed the relevant Chapter Notes and amendments to Section 2(f) of the Act, concluding that the appellant was entitled to exemption from duty payment for certain goods under specific headings. The Tribunal highlighted the correct quantification of duty liability and the need for re-determination of penal liability in de novo proceedings.

The Tribunal held that the appellant was entitled to exemption from duty payment on retail packs of goods under certain headings for the entire dispute period and partial exemption for goods under another heading starting from a specific date. The decision emphasized the allowance of CENVAT credit on duty paid on inputs when duty is paid on finished goods. The Tribunal partially allowed the appeal, directing the original authority to re-quantify the duty amount and decide afresh on penal liability under Section 11AC, ensuring the appellant's right to a reasonable opportunity to be heard.

In conclusion, the judgment addressed the waiver of pre-deposit, duty liability on repacked goods, applicability of 'deemed manufacture,' quantification of duty for different goods, entitlement to exemption, re-quantification of duty amount, and penal liability under Section 11AC, providing detailed analysis and directions for further proceedings.