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TMI Blog2004 (2) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Briefly stated the facts are as follows :- In Civil Appeal Nos. 3224-3225 of 1998 the period under consideration is 1-3-1988 to 30-9-1989 and 1-10-1989 to January, 1990. In Civil Appeal No. 5176 of 1998 the period under consideration is 1987-88 and 1988-89. In Civil Appeal No. 5176 of 1998, the Appellant is also urging that during that period they were doing job work for one M/s. Flex Laminators and are thus not liable to pay excise. In the view we are taking it is unnecessary to deal with this aspect. 3. The Appellants filed a Classification List showing the item as falling under Tariff item 3920.36 and 3920.38. The Appellants claimed benefit of Notification No. 53/88-C.E., dated 1st March, 1988. The Appellants were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties at great length. To decide the question whether the product manufactured by the Appellants falls under Item 35 or Item 32.3 one would have to look at the Circular. The Circular reads as follows :- "Notification No. 53/88-C.E., dated 1-3-1988. Effective rates of duty on the specified plastics and articles thereof In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India, in the Ministry of Finance (Dept. of Revenue) No. 132/86-Central Excises, dated the 1st March, 1986, the Central Government hereby exempts goods of the description specified in column (3) of the table hereto annexed and falling under heading numbers or sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Item No. 39.01 to 39.15. Therefore, in our view, the Assistant Collector and the Tribunal were right in concluding that the Appellants' product could not fall under Item No. 35. 9. However, the more important aspect is whether there can be said to be any manufacture. Undoubtedly, the Appellants had filed the Classification List. But merely because a party mistakenly files a Classification List does not mean that he has to pay duty, if in law, he is not bound to pay duty. If there is no manufacture then the mere fact that a Classification List has been filed would not make them liable to pay duty. 10. In reply to the Show Cause Notice it was clearly contended that there was no manufacture. Once this contention was taken, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct items classifiable under different sub-headings." In our view, this finding is clearly unsustainable. 12. It has been held by the Bombay High Court in the case of Garware Plastics & Polyester Ltd. v. Union of India reported in 1991 (52) E.L.T. 506 (Bom.) that the process of lacquering/metallising of polyester film does not amount to manufacture, there being no new distinct commercial commodity having a different identity or name. Thereafter, the Tribunal has in the case of Rexor India Ltd. v. Collector of C. Ex. reported in 1991 (52) E.L.T. 392 (Tribunal) held the same. It must be mentioned that a Special Leave Petition filed against this Judgment, by the Department, was dismissed on 17th August, 1995. The Tribunal again in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be concluded that there is no manufacture. 16. It was however submitted that the case has proceeded on the admitted footing that there was a manufacture. It was submitted that the matter must be remitted back to decide whether there is manufacture. It was submitted that this aspect will have to be decided in terms of Note 12 to Chapter 39 and after looking at the process adopted by the Appellants. It was submitted that under the present Tariff there are separate sub-heading and thus after examining the process of the Appellants it may be possible to contend that a new and distinct product has come into existence. 17. We are unable to accept this submission. The question is whether an individual and distinct product has come int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Of polymers of vinyl chloride : 3920.11 -- Rigid, plain 60% 3920.12 -- Flexible, plain 60% 3920.13 -- Rigid, lacquered 60% 3920.14 -- Flexible, lacquered 60% 3920.15 -- Rigid, metallised 60% 3920.16 -- Flexible, metallised 60% 3920.17 -- Rigid, laminated 60% 3920.18 -- Flexible, laminated 60% 3920.19 -- Other 60% - Of regenerated cellulose : 3920.21 -- Film, plain 60% 3920.22 -- Film, lacquered 60% 3920.23 -- Film, metallised 60% 3920.24 -- Film, laminated 60% 3920.25 -- Sheet, plain 60% 3920.26 -- Sheet, lacquered 60% 3920.27 -- She ..... X X X X Extracts X X X X X X X X Extracts X X X X
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