9911796707
TMI Blog1993 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... whether they are excisable goods at all. Reference was made on behalf of the petitioners to the copy of the Board s order No. 2/93, dated 21-4-1993 issued under Section 37B of the Central Excises and Salt Act, 1944, wherein the Board clarified that the Printing Paste prepared from formulated, standardised or prepared dyes by simple mixing with other materials would not amount to manufacture and, therefore, not classifiable under sub-heading 3204.29 of the Tariff. It was submitted that the Board s instruction is statutory in nature and binding on the Excise authorities in regard to classification of the goods in question. It was further urged that excepting in the two cases the Department nowhere collects any excise duty on such goods and duty was levied on the goods in question in the present cases because at the time when the impugned order was passed the Board s statutory instruction was not available. It was further urged that when the manufacturers of identical goods are not called upon to pay any duty all over, to levy duty on the goods from the petitioners alone would amount to hostile discrimination not permissible in law. At any rate it was urged that on prima facie consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed or prepared forms ready for use in the process of dyeing by addition of disposing agents or diluents, etc. would amount to `manufacture . 5. Keeping this in view, it is hereby clarified that the printing paste prepared from formulated, standardised or prepared dyes by simple mixing with other materials shall not amount to manufacture and as such, not be classifiable under sub-heading No. 3204.29 of the Tariff. 6. This Order is issued in exercise of the powers conferred under Section 37B of the Central Excises and Salt Act, 1944 (1 of 1944) for the purpose of ensuring uniformity in the classification of excisable goods. It is further ordered that a copy of this Order be sent to all Collectors of Central Excise for being observed and followed and for being made available to all other persons employed in the execution of the Central Excises and Salt Act, 1944 and for the issue of Trade Notices." It is clear from the above statutory order of the Board that the Department is not treating the goods in question as excisable and the Department is not levying any duty on any manufacture of such goods. In the present cases the impugned orders came to be passed before the issue of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me after the relevant period of the demand an order under Section 37B has been issued by the Board holding that the goods in question cannot be taken to be manufactured goods and, therefore, not chargeable to duty under Tariff Heading 3204.29. This order of the Board bearing Order No. 2/93 dated 21-4-1993 issued under Section 37B of the Central Excises and Salt Act, 1944 superseded the earlier order of the Board issued under the said section whereunder it was held that the duty on the goods viz. Printing Paste would be chargeable under Tariff Heading No. 3204.29. I observe that during the period for which the demand has been raised the earlier statutory order of the Board under Section 37B was in force and the departmental authorities, therefore, all over the country were bound by this order and were, therefore, required to assess the duty as also collect the same by assessing the goods in question under Tariff Heading 3204.29. At the relevant time, therefore, the applicants were required to pay the duty as anybody else. The latter order of the Board bearing No. 2/93 would be applicable only prospectively. In my view, therefore, the demand of duty and the pre-deposit of the same by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment into formulated, standardised or prepared forms ready for the use in the process of dyeing alone shall amount to manufacture , I am afraid, does not lend itself prima facie to the interpretation that it follows from the said rate [sic] the in the case of formulated, standardised or prepared forms of dyes the making of the material into printing paste would not amount to manuacture. Note 6 has to be taken to mean that so far as the concept of `manufacture is concerned an extended meaning has been given to the same in case unformulated, unstandardised and unprepared forms of synthetic organic colouring matter, dyes, etc. are converted into formulated, standardised or prepared forms. This merely lends itself to the interpretation that the conversion of an unformulated or unstandardised form like that of Wet cake when changed by simple reduction of the size etc. the same would still be taken to be a manufacture. But this is not to say when out of a standardised synthetic organic colouring matter a paste with the addition of a number of ingredients is prepared and which answers to a specific end-use that would not amount to manufacture. In my humble view the earlier view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balance Sheet, I hold that no undue hardship will be caused in case they are called upon to pre-deposit the entire duty and I, therefore, order the applicants to pre-deposit the duty in terms of the impugned order subject to this, the pre-deposit of the penalty of Rs. 20,000 shall stand dispensed with pending appeal. The date by which the pre-deposit has to be made will be indicated only on the outcome of the decision by the Third Member. 9. In the case of M/s. Ramkumar Mills Ltd. the duty demanded is Rs. 7,56,519.10 and the penalty imposed is Rs. 25,000. In their stay application a general plea has been taken that the applicants company is a potentially viable company and employs nearly 1,000 workmen directly and indirectly and the cost of inventories has gone up perceptibly since the devaluation of rupee. No facts and figures by way of Balance Sheet have been produced before us. The learned Advocate at the time of personal hearing also did not put forth any plea of financial hardship with facts and figures. In the absence of that, I direct the applicants to pre-deposit the entire duty demanded in terms of the impugned order and in doing so the pre-deposit of the penalty shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Notification exemption is being given to finishing agents etc. used in the textile industry falling under Chapter Heading 38.04 for printing purposes. The learned Advocate further pleaded that different Collectorates have classified the goods under different headings like 32.15, 32.04, 38.09 etc. for the purpose of assessment and some Collectorates have even held that the goods are not at all liable to duty. The learned Advocate also drew my attention to para No. 3 of Member (Judicial) s order in support of his arguments. In support of his plea the learned Advocate cited the decision of the Bombay High Court in the case of M/s. Phoenix Mills Ltd., in W.P. No. 1906 of 1993 and he has placed a copy of the said order attested to be true copy. The Hon ble Bombay High Court in this matter has set aside the order passed by the Tribunal and directed the Tribunal to hear and dispose of the appeal without insisting of pre-deposit of the duty demanded. While passing the order, Bombay High Court has duly taken note of the Board s order dated 21st April 1993. He pleaded that if the appellants are directed to pre-deposit the duty amount demanded it would amount to undue hardship. He plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given unconditional stay in similar cases wherever they were earlier directed to execute Bank guarantee. Shri Mondal, the ld. SDR, however, supports the order and could not give any indication as to whether this clarification is taken into account by the Collector. After hearing both the sides, it appears that this clarification given by the Government is after passing the impugned order. In view of the aforesaid position, prima facie case is in favour of the applicants. We therefore grant stay and waiver of recovery of the duty amount." The Hon ble Bombay High Court in the case of Commissioner of Income-Tax v. Smt. Godavaridevi Saraf, Tumsar reported in 1978 (2) E.L.T. (J 624) in para No. 8 has observed as under :- 8. In view of this clear pronouncement of the Supreme Court, it is not controverted by Mr. Joshi on behalf of the Revenue that an Income-Tax Tribunal sitting at Madras is bound to proceed on the footing that Section 140A(3) of the Act is non-existent in view of the pronouncement of the Madras High Court in the case of A.M. Sali Maricar and Another, 90 I.T.R. 116. Actually the question of authoritative or persuasive decision does not arise in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
