2016 (8) TMI 433 - HC - Customs

Classification - Section 3(1) of the Customs Tariff Act, 1975 (CTA)- payment of excise duty in respect of tyre scrap cut into two to three pieces produced from used and old tyres - clarification dated 2nd January 2015 issued by the Tax Research Unit ( TRU ) of the Department of Revenue, Ministry of Finance - availability of exemption - Crumb Rubber Modified Bitumen - the cutting and punching of tyres unfit for consumption or marketing - whether CVD can be levied on the cut tyre pieces imported by the Petitioner - case law reffered is Modi Rubber Limited v. Union of India 1986 (12) TMI 41 - HIGH COURT OF DELHI AT NEW DELHI - Held that - Modi Rubber Limited v. Union of India 1986 (12) TMI 41 - HIGH COURT OF DELHI case need to be reconsidered regarding Whether the process to which old tyres are subject to produce two or more pieces of cut tyre is manufacture within the meaning of Section 2 (f) of the Central Excise Act, 1944 and whether the decision of this Court in Modi Rubber Limited v. Union of India 1987 (29) ELT 502 (Del) requires to be reconsidered. This will in turn determine if CVD can be levied on the cut tyre pieces imported by the Petitioner - petition placed before the Hon ble Chief Justice.

Summary

Issues Involved:
1. Validity of the TRU clarification dated 2nd January 2015 regarding excise duty exemption on tyre scrap.
2. Whether cutting old tyres into two-three pieces constitutes "manufacture" under Section 2(f) of the Central Excise Act, 1944.
3. Applicability of CVD on imported cut tyre pieces.

Issue-wise Detailed Analysis:

1. Validity of the TRU Clarification:
The petition under Article 226 questions the TRU's clarification that there is no exemption from excise duty for tyre scrap cut into pieces, making such goods chargeable to CVD under Section 3(1) of the Customs Tariff Act, 1975 (CTA). The petitioner, Tinna Rubber & Infrastructure Limited, had earlier protested against the imposition of 12% CVD, leading to the issuance of the impugned clarification by TRU on 2nd January 2015. This clarification effectively rejected the petitioner’s representation.

2. Whether Cutting Old Tyres Constitutes "Manufacture":
The central question is whether the process of cutting old tyres into pieces amounts to "manufacture" within the meaning of Section 2(f) of the Central Excise Act, 1944. The petitioner argued that cutting old tyres does not amount to manufacture, relying on prior judgments, including Modi Rubber Limited v. Union of India (1987) and decisions by CEGAT and the Supreme Court, which held that processes like cutting do not create a new product. The petitioner emphasized that the cut pieces retain their original character and are not new products.

Conversely, the respondent argued that the process of cutting old tyres transforms them into distinct, marketable products, thus constituting manufacture. They cited various judgments, including Commissioner of Central Excise, Bangalore-II v. Osnar Chemical Pvt. Ltd. (2012) and CIPLA Ltd. v. Commissioner of Central Excise, Bangalore (2008), to support their stance that the transformation results in new products with different identities and uses.

3. Applicability of CVD on Imported Cut Tyre Pieces:
The determination of whether CVD can be levied hinges on whether the process of cutting old tyres constitutes manufacture. If cutting old tyres into pieces is deemed manufacture, then the imported goods would be subject to CVD. The court noted that the issue of recycling old tyres to produce marketable cut pieces requires a detailed examination to determine if this process meets the twin tests of manufacture and marketability, as highlighted in Commissioner of Central Excise, Chandigarh-I v. Markfed Vanaspati & Allied Industries (2003).

Referral to Larger Bench:
Given the complexity and significance of the issues, particularly the interpretation of "manufacture" and the applicability of CVD, the court decided that the decision in Modi Rubber Limited v. Union of India requires reconsideration by a larger bench. The specific questions referred are:
(a) Whether the process of cutting old tyres into pieces constitutes "manufacture" under Section 2(f) of the Central Excise Act, 1944.
(b) Whether the decision in Modi Rubber Limited v. Union of India (1987) needs reconsideration in this context.

Conclusion:
The petition raises critical questions about the definition of manufacture and the applicability of CVD on imported cut tyre pieces. The court has referred the matter to a larger bench for a thorough examination of these issues, which will ultimately determine the validity of the TRU clarification and the levy of CVD on the petitioner’s imports.