1992 (9) TMI 237 - AT - Central Excise

Issues Involved:
1. Classification and assessment of base paint and catalyst as separate or single excisable items.
2. Duty liability on the catalyst purchased from the market.
3. Validity of the impugned order on merits and reconsideration of the time bar aspect.

Issue-wise Detailed Analysis:

1. Classification and Assessment of Base Paint and Catalyst:
The primary issue is whether the base paint and the catalyst, which are cleared and sold together as a unit, constitute two distinct excisable items requiring separate classification and assessment or if they together form a single excisable item. The appellants argued that the catalyst, being a bought-out item, should not be included in the assessable value of the paints. They contended that the catalyst is merely repacked and inserted into cartons containing paints, and thus, its value should not be included in the assessable value of the paints cleared by them.

The Vice President, however, observed that the Eomite Airdrying Catalysed Paint consists of two components-Base Paint and Catalyst (Med-622)-and that the catalyst is an essential component of the product. He opined that for the purpose of Central Excise, both components should be taken together and treated as one single product, regardless of whether they are physically incorporated in the base paint or kept separately for mixing before use. Therefore, he concluded that it was incorrect to claim separate classification and to assess them differently.

The third member, P.C. Jain, supported the view that the two products packed together do not create a new commodity until mixed by the consumer before use. He emphasized that no new product comes into existence merely by packing two different commodities together, hence agreeing with the Judicial Member that no separate duty liability arises.

2. Duty Liability on the Catalyst Purchased from the Market:
The appellants argued that since the catalyst is purchased from the market and not manufactured by them, no duty is leviable on it. They asserted that the show cause notice did not allege the inclusion of the catalyst's value in the assessable value but only mentioned reclassification under TI 14-I(5).

The Vice President disagreed, stating that the fact that the catalyst was purchased from the market does not change the situation, as one of the components would always be purchased from the market if required and utilized for manufacturing the final product. Therefore, he concluded that the catalyst's value should be included in the assessable value of the final product.

P.C. Jain, however, concluded that no separate duty is leviable on the catalyst as it does not bring a new product into existence until mixed with the paint by the consumer. He referenced the Tribunal's judgment in the case of C.C.E. v. Kalinga Paints & Chemical Industries, which held that packing two separate products together does not constitute manufacture.

3. Validity of the Impugned Order on Merits and Reconsideration of the Time Bar Aspect:
The Vice President upheld the Collector (Appeals) order on merits but remanded the case for reconsideration of the time bar aspect. He noted that the documents included in the paper book only showed classification lists relating to periods before or after the relevant period, and this aspect was not fully discussed in the original or appellate orders.

The Judicial Member, however, found that the show cause notice did not address the inclusion of the catalyst's value in the assessable value and argued that the appeal should be allowed with consequential relief to the appellants.

P.C. Jain agreed with the Judicial Member on the merits, stating that the impugned order should be set aside and the appeal allowed with consequential relief. He did not find it necessary to address the time bar issue, given his position on the merits.

Conclusion:
In view of the majority opinion, the impugned order is set aside, and the appeal is allowed with consequential relief to the appellants. The base paint and catalyst, when sold together, do not constitute a single excisable item until mixed by the consumer, and no separate duty is leviable on the catalyst purchased from the market.

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