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TMI Blog2010 (7) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 2-7-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri S.V. Arya, Advocate, for the Appellant. Shri K.P. Singh, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard at length the learned Advocate for the appellants and learned DR for the respondent. 2. The appeal in this case arises from order dated 21-12-2009 passed by the Commissioner (Appeals) Delhi, whereby the appeal filed by the appellants against the order of the adjudicating authority has been dismissed. The Assistant Commissioner, Delhi vide his order dated 3-10-2008 had confirmed demand of Rs. 48,378/- along with interest thereon and equal amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffixed on the container at the depot so that the product be ready for marketing. Subsequently, a show cause notice came to be issued on 27-12-2007 which was sought to be contested by the appellants without any success. 5.Placing reliance in the decision in the matter of Lakme Lever Limited v. Commissioner of Central Excise, Mumbai-III reported in 2001 (127) E.L.T. 790 (Tri. -Mum.), Lupin Laboratories Ltd. v. Commissioner of Cus. C. Ex. Aurangabad reported in 2002 (139) E.L.T. 366 (Tri.-Mumbai), Commissioner v. Lupin Laboratories Pvt. Ltd. reported in 2004 (166) E.L.T. A116 and Buns Cones Pvt. Ltd. v. Commissioner of Central Excise, Delhi-II reported in 2005 (187) E.L.T. 462 and drawing our attention to the amended definition of the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Branch Manager of the appellants submitted that the same clearly discloses that the process was being undertaken to render the product marketable. 7. Learned Advocate for the appellants also submitted that the demand was barred by law of limitation and there was no case of any suppression as such. Besides, the fact that the product had undergone tinting process was apparent from the invoices issued to the consumers. Referring to the expression T. B. used in the invoices, it was sought to be contended that the same disclosed tinting base. 8. Learned DR on the other hand submitted that invoices were not submitted with the required declaration to the Department and, therefore, merely on the basis of EXPA in the invoices dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further states that the said activities shall also include the activity in the nature of alteration of the retail sale price on it or adoption of any other treatment to the goods which could render the product marketable to the consumer. The requirement of 'marketability' would always be there to construe an activity to be in the nature of manufacture. But apart from that any treatment given to the goods manufactured with the intention to make product further marketable to the consumer would also amount to manufacture and that is the intention of legislature disclosed in the said clause of the definition. 11. In any case, this issue need not be addressed in detail at this stage. Suffice to refer to the statement of the Branch Manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be relied upon by the appellants apart from the fact that the said decisions were in relation to Chapter Note 4 of Chapter 33 which read thus :- "In relation to products of heading Nos. 33.03, 33.04 and 33.05, conversion of powder into tablets, labeling or re-labelling of containers intended for consumers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the products marketable to the consumer, shall be construed as 'manufacture'" 13. Plain reading of the above Note 4 and comparing the same with clause (iii) of the definition term would disclose that the same is not in pari materia with the definition clause. 14. For the reasons stated above, therefore, we do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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