2013 (6) TMI 215 - AT - Central Excise

Polyester Filament Tow/Polyester Staple Fibre from Waste PET Bottles - whether the process adopted by the appellant amounts to manufacture or not? - Stay petition - the applicant was clearing the goods without payment of duty in terms of decision in the case of GPL Polyfils Ltd. (2005 (1) TMI 375 - CESTAT, NEW DELHI) which held that no manufacture was involved - Held that - The period prior to the amendment in law i.e. prior to June, 2010 would be covered by the decision in the case of GPL supra as such, at the most, the appellant would be under duty liability for the period subsequent to June, 2010. The appellant have already deposited an amount of Rs.11.20 crores, as is clear from the said letter dated 5.4.2013 of the Asstt. Commissioner & as submitted that even for the subsequent period, the efforts are being made at the association level, for the issuance of Section 11 C-notifications also confirmed by another Advocate, Shri Prabhat Kumar submits that on behalf of the association, he is pursuing the matter before the Ministry for the issuance of Section 11 C notification though he fairly admits that no survey stands floated by the Ministry Thus it is deemed fit to dispense with the condition of pre-deposit of balance amount of duties and entire amount of penalties and stay the recovery of the same during the pendency of the appeals.

Summary

Issues:
1. Whether the process adopted by the appellant amounts to manufacture.
2. Validity of circular No.929/19/2010-CX.
3. Applicability of the amendment made in law vide Section 142 of the Finance Act, 2012.

Analysis:
1. The dispute revolves around whether the process undertaken by the appellant, involving the manufacture of Polyester Filament Tow/Polyester Staple Fibre from Waste PET Bottles, constitutes manufacturing. The appellant cleared goods without duty payment based on a Tribunal decision, which was later challenged due to a circular issued by the Central Board of Excise and Customs. The High Court emphasized that technical and factual aspects should be examined by authorities and directed the Revenue authorities to independently evaluate the contentions without the circular's binding influence. The High Court balanced equities by allowing the Tribunal's decision to be considered if applicable, and the demands were stayed pending CESTAT's decision.

2. The validity of circular No.929/19/2010-CX was questioned by the appellant before the High Court, which held that the circular's statement regarding the Tribunal decision not acting as a binding precedent in other matters was unsustainable. The High Court directed authorities to consider the Tribunal's decision independently, treating the circular as a guideline rather than a binding mandate. The High Court ensured that the demands would not be recovered coercively until stay applications were decided by CESTAT, balancing equities and providing recourse for challenging CESTAT's decision.

3. The amendment in law vide Section 142 of the Finance Act, 2012, classified Polyester Staple Fibre and Polyester Fibre Yarn from plastic and plastic waste under specific chapters. The appellant argued that the amendment was applicable from June 2010, while the period in question spanned from April 2009 to March 2012. As a substantial part of the demand was covered by the Tribunal's decision pre-amendment, the appellant's duty liability was limited to the post-amendment period. The appellant had already deposited a significant amount, and efforts were ongoing for Section 11 C notifications. Considering these factors, the Tribunal dispensed with the pre-deposit condition for the balance amount of duties and penalties, staying the recovery during the appeals' pendency.

This judgment clarifies the manufacturing process, the impact of circulars on legal precedents, and the applicability of legislative amendments in tax liability disputes, providing a nuanced approach to balancing equities and legal obligations.