2011 (8) TMI 429 - AT - Central Excise

Manufacture - job work - making cuffs and collars from the cloth supplied by the principal manufacturer. - Whether the assessee has the right to raise the contention that their activity does not amount to manufacture or not at this stage or not. - Held that - assessee did not raise this contention before the adjudicating authority and neither was raised in the show-cause notice - it would be in the interest of justice to send back the matter to the original adjudicating authority to consider the issue afresh

Summary

Issues:
1. Whether the activity undertaken by the appellant amounts to manufacture.
2. Liability to pay excise duty during the period of 1.3.2001 to 30.4.2001.
3. Imposition of penalty on the appellant and co-noticees.
4. Right to raise the contention of whether the activity amounts to manufacture at a later stage.

Analysis:
The case involves an appeal by Sandeep Enterprises against the demand of duty, arguing that their activity does not amount to manufacture. The Revenue also appeals against dropping the penalty on the respondents. Sandeep Enterprises, a job worker making cuffs and collars from supplied cloth, did not pay excise duty, claiming exemption except for a specific period. The Revenue contends that during the period in question, the activity qualifies as manufacture, thus attracting excise duty. The Commissioner confirmed the duty demand but waived the penalty. The appellant challenges the duty and interest confirmation, while the Revenue disputes the penalty waiver and the Commissioner's decision on MODVAT credit.

Shri P.K. Shetty, representing the appellant, argues that the activity does not constitute manufacture, citing a relevant Apex Court case. He requests a reconsideration based on this legal argument. On the contrary, Shri H.B. Negi, for the Revenue, asserts that since the appellant did not raise this issue earlier, it cannot be considered now. He maintains that the duty confirmation necessitates penalty imposition on the appellant and co-noticees.

The tribunal deliberates on whether the appellant can raise the contention regarding the manufacturing nature of their activity at this stage. It determines that this legal issue can indeed be raised now and directs the matter back to the adjudicating authority for a fresh consideration on whether the activity amounts to manufacture. The tribunal emphasizes the importance of addressing this crucial issue for justice. The adjudicating authority is instructed to decide within three months from the order receipt, and the appellant is directed to contact them promptly for a hearing date. Consequently, the appellant's appeal is allowed for remand, setting aside the previous order, and the Revenue's appeal is disposed of accordingly.