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TMI Blog2003 (4) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... r letter dated 25-3-97 and 19-12-97 allegedly informed the job work undertaken by them for purification of various solvents and sought guidance as regards formalities and procedures to be followed by them from the office of Assistant Commissioner of Central Excise, III Division and also VI Division as per the information gained by them. However, a Show Cause Notice was issued alleging suppression of facts and demanding duty by holding that the process of purification undertaken by them as per Note 11 to Chapter 29 of Schedule to Central Excise Tariff Act, would amount to manufacture under the Central Excise Act, 1944 and they would be required to discharge duty on the value of the chemicals sent back by them to the supplier. The duty demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of manufacture under the Central Excise Act, has been settled with the definition of manufacture being substituted with the introduction of Central Excise Tariff Act, 1985. The new definition contains two clauses and instead of setting out the activities and procedures of different tariff items, clause (ii) of the substituted definition (specifies that any process which is specified in Section/Chapter notes of the schedule to the Tariff Act would amount to manufacture). This clause (ii) of the new definition, is too vast and when read with Chapter Note 11 to Chapter 29 of the Central Excise Act, 1985 would render no doubt that the processes undertaken by the appellants amount to manufacture. The Apex Court in the case of Empire In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess or technology that determines excisability - the determining factor is what is produced by the process or technology. In Laminated Packing [1990 (49) E.L.T. 326], the Supreme Court held that even if the resultant article falls under the same tariff heading as the item that went into the process to produce it, the process would still amount to manufacture if, it resulted in a commercially different article. Therefore, in this view of the matter, it is not permissible now to determine whether a particular process of technology undertaken, amounts to manufacture or not, what is essential to determine the activity to constitute manufacture , under Central Excise to attract duty under the Central Excise Act, 1944 would be to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not marketed or not brought to open market for sale. It is pertinent to mention here that the assessee himself manufactures and sells acetone and ethyl acetate. It may also be added that the various judicial fora have always referred to marketability and not actual marketing of goods. Hon ble Tribunal as far back as 1983 in the case of Orient Paper Mills (which decision was followed in several other cases) held that when a marketable commodity is created, excisability follows, whether or not the manufacturer sells it. [1983 (14) E.L.T. 1813]. Re-iterated in the case of Indian Hume Pipe Co. Ltd. reported in 1999 (109) E.L.T. 305 (T). 20. The assessee had gone on to argue that no evidence has been let in as to the trade/commercial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee is not tenable. to arrive at to hold that the activity undertaken by the job worker, the appellant in this case, amounts to manufacture and duty under the Central Excise Act has to be discharged on the goods at valuation to be arrived at as per Ujagar Prints decision [1988 (38) E.L.T. 535 (S.C.)]. (b) The appellant s argument as regards valuation and quantification of duty is upheld. The Commissioner has levied duty after ascertaining and adopting the values at the factory gate for comparable goods available. In view of the finding arrived at herein above, this comparative valuation for goods cleared on job work basis cannot be upheld. The order is therefore required to be set aside and remanded back for re-determina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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