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TMI Blog2012 (12) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... assembling the components supplied by M/s. Gillette India Ltd. (GIL). Appellant Puneet Mahajan is a Partner and authorized signatory of M/s. G.M. Enterprises. 3. During the period October and November, 2001 the appellant firm assembled combination packs comprising of the twin blade cartridge manufactured by him and the Gillette Shave Gel Tubes (GSG) obtained from GIL under a promotional scheme and marketed those combination packs discounted on MRP of Rs. 85/-. The combination packs consisting of five twin blade cartridge having MRP of Rs. 66/- and 60 gms. tube Gillette shaving gel tube with MRP of Rs. 49/-. The appellant paid duty on the basis of MRP of five twin blade cartridge mainly for the reason that Gillette shaving gel tube procured by the appellant firm from GIL were duty paid. 4. The department was of the view that since the MRP printed on the combination pack was Rs. 85/-, the appellant firm was liable to pay excise duty on MRP value as per Section 4A of the Central Excise Act, 1944. Thus, a show cause notice was issued to the appellant as to why the demand for excise duty for differential of the MRP of the twin blade cartridge and the combination pack should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 4A of the Central Excise Act, 1944 would come into play. Ld. AR further submitted that in the instant case the adjudicating authority as well as appellate authority have rightly assessed and confirmed the excise duty on the basis of the MRP Rs. 85/- printed on the combination pack, therefore, impugned orders cannot be faulted. 8. We have considered the rival contentions and perused the record. Admittedly, the appellant M/s. G.M. Enterprises is manufacturing twin blade cartridge by assembling the parts procured from GIL. It is not disputed that MRP on a pack of five twin blade cartridge manufactured by the appellant is Rs. 66/- on which the appellant paid excise duty while clearing the combination pack of twin blade cartridge along with Gillette shaving gel. It is also not disputed that Gillette shaving gel tubes packed in combination packs were having MRP Rs. 49/- and those were procured by the appellant firm from GIL on payment of excise duty. Thus, in fact in respect of the combination packs, the appellant has paid excise duty on the basis of respective MRP printed on the twin blade cartridge and shaving gel tube i.e. Rs. 66/- plus Rs. 49/- is equal to Rs. 115/-. 9.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot mean merely "to produce some change in a substance," however minor in consequence the change may be. While making the above observation relied on a passage quoted in Permanent Edition of Words and Phrases, Vol. 26 from an American Judge which reads as follows : "manufacture' implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use." In South Bihar Sugar Mills Ltd. v. Union of India (supra) the Supreme Court followed the decision in D.C.M.'s Ltd. and observed that : "The Act charges duty on manufacture of goods. The word "manufacture" implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use." In Ujagar Prints v. Union of India (supra) the Supreme Court reiterated the view expressed in D.C.M.'s case and observed that : "The prevalent and generally accepted test to ascertain that there is 'manufacture' is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er minor in consequence the change may be and as a result of treatment, labour and manipulation there should be transformation in the raw material and as a result of treatment, labour and manipulation a new and different article must emerge having a distinct name, character or use. It is not enough if there is change, the change should result in bringing into existence a new and definite article having a distinctive name, character or use and the said article must be marketable and it should be known to the market as such. In the absence of any one of the ingredients referred to above, the provisions of the Act are not attracted and no excise duty is leviable. Even if the goods so produced were excisable goods mentioned in the schedule, they cannot be subjected to duty unless they are marketed or capable of being marketed. The marketability is one of the principal test in determining the liability to excise duty. In addition the product which is brought into existence must have a distinct identity in the commercial world". 12. On applying the aforesaid decision to the facts of the instant case, it is apparent that the appellants have undertaken the exercise of packing duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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