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TMI Blog2008 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest under Section 11AB on the duty demanded as well as interest on Rs. 4,46,164/- paid by the appellants belatedly as held by the adjudicating Commissioner. 2. Initially, the appeal was dismissed as the same was filed without obtaining the required COD clearance. Subsequently, the appellants have obtained the clearance from the Committee on Disputes and therefore, the appeal has been restored. However, the appellants have not deposited the duty, penalty and interest which is a pre-requisite before the appeal itself can be heard by the Tribunal. The appellants have filed a stay petition for waiver of pre-deposit. We find that though Section 35F of the Central Excise Act, 1944, requires prior deposit of duty, penalty and interest b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant-Company and that in some other Commissionrates, the duty demands on the same goods have been dropped. We have made it clear to the ld. Advocate that we can examine the detailed arguments put forth against the impugned order only when we take up the appeal for regular hearing. At this stage, we have to only consider whether the statutory requirement of pre-deposit is required to be waived on the ground of undue hardship. We have already noted that the appellant-Company has no financial hardship whatsoever. The ld. Counsel has shown us an order passed by the Commissioner of another jurisdiction, namely, Bangalore, which is in favour of the appellants. Only when we hear the matter in detail, we can come to the conclusion as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the entire facts of the case and is based on sound reasoning as well as precedent decision of the Tribunal in another case. 4. We have also prima facie considered the merit of the case. The appellants receive non-duty paid Motor Spirit in their premises, they blend the same with MFA (Multi Functional Additive) to produce a new product. The adjudicating Commissioner has held that the new product is excisable as it has different characteristics and is marketed as a separate product and hence it meets the crucial test of manufacture. We note that the law is now settled that when product B is made from product A, for determining its excisability, it is not relevant whether products A B are classified under the same tariff heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Department also draws our attention to the intense advertising done by the appellants to market the impugned goods as a separate product having separate characteristic and efficiency. In particular, the impugned goods are marketed as having additional properties for which it also fetches a higher price in the market. 7. We also take note of the specific findings of the jurisdictional Commissioner which are as follows :- 14. As far as question of blending amounts to manufacture or not is concerned, I find that there cannot be a straight or specific answer to this question, it depends upon case to case basis. I find that in the instant case, Motor Spirit is dosed/blended with MFA (Multifunctional Additive), consequent upon which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value is also enhanced substantially. The said process of dosing/blending is a manufacturing process as both ingredients lose their individual identity. This gives credence in view of a Tribunal decision in the case of M/s. IOC Ltd. vide its Order No. A-324/Cal/01 dated 24-5-01 ERB-Kolkata, in which blending of imported Kerosene oil with indigenously produced kerosene oil, for getting improved illuminative characteristic and smoke point, has been considered as a process of manufacture and as a result, Cenvat Credit has been allowed on imported kerosene oil to M/s. Indian Oil Corporation Ltd. Further, M/s. Indian Oil Corporation Ltd., Barauni is also paying duty on premium brand of Motor Spirit and Diesel on higher assessable value than tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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