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TMI Blog2013 (10) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluded in the clearances of the appellant. 3. Both sides are in rivalry contentions. Clause 4.1 read with Clause 6 of the agreement indicates that all along the appellant was owner of the raw materials and finished goods. Once such was the agreement between the parties, the goods ultimately manufactured by MARCK came to the appellant for ultimate disposal. Therefore, appellant getting its goods manufactured using facility of other became liable to duty. The appellant is, therefore, directed to deposit of Rs.6,00,000/ (Rupees Six Lakhs only) within 4 weeks and make compliance on 28.06.2013. 4. Ld. Brother, Shri Rakesh Kumar, Member (Technical) says that he will record a different order. Place the file before him to record his order. PER : Rakesh Kumar I have heard the order dictated by my ld. brother in the open court. Since I do not agree with his conclusions, I am recording a separate order. 2. The facts of this case, in brief, are as under:- 2.1. The appellant are engaged in the manufacture of Ophthalmic and liquid orals (medicaments) falling under Chapter 30 of the Central Excise Tariff. They are availing SSI exemption under notification no.8/03-CE dated 1.3.2003, as amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan licence and on job work basis and that the value of these goods cannot be clubbed with the value of the clearances of their own goods for the purpose of SSI exemption. However, this plea was not accepted by the Original Adjudicating Authority. 2.2. On appeal to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 23.12.2012 upheld the order of the original adjudicating authority except for reducing the duty demand to Rs. 12,36,000/- as there was mistake in the calculation of duly in the order passed by the original adjudicating authority. The Commissioner (Appeals) relied upon the para 4.2 of the Chapter 2 of the CBEC Excise Manual of the supplementary instructions for clubbing the clearances of the goods got manufactured by the appellant as loan licensee with the value of the clearances of the goods manufactured by the appellant in their own unit, for determining their eligibility for SSI exemption during 2008-2009 and also for determining the value of dutiable clearances during that year. Against this order of the Commissioner (Appeals), this appeal has been filed along with stay application. 3. Heard both sides in respect of stay application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for difference between the balance sheet figure of clearances and the ER-I return figures of clearances is that the balance sheet figures also include the sale value of the goods got manufactured on job work basis or under loan licence agreement through other manufacturers, that the impugned order is totally incorrect, that the appellant have a strong prima facie case and hence, the requirement of pre-deposit of duty demand, interest thereon and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 5. Ms. S. Bector, ld. Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner (Appeals) and also relied upon the judgement of Hon'ble Allahabad High Court in the appellant's own case reported in 2012 (276) ELT 327. 6. I have considered the submissions from both the sides and perused the records. On going through the order of the Commissioner (Appeals), it is clear that the basis of department's case against the appellant is that the clearances made by the appellant's unit at Allahabad should be clubbed with the clearances of the goods got manufactured by them under loan li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory on loan licence basis for another manufacturer, he is required to club the value of clearances of his own manufactured goods with the value of the goods belonging to another person manufactured on loan licence basis. But the manufacturer, who has got his medicines manufactured in the premises of another manufacturer, is not required to club the value of the medicines got manufactured under loan licence agreement through another manufacturer with the value of medicines manufactured by him in his own factory. The words - "principal manufacture" in para 4.2, Chapter 2 of the Manual of supplementary instructions refer to the manufacturer who in his factory, in addition, to manufacturing the medicines for himself also manufacturer medicines for another manufacturer under loan licence agreement and he is required to aggregate the value of the clearances made by him of his own manufactured goods with the clearances made of the goods manufactured under loan licence agreements. The term "principal manufacture" does not refer to the person who has been issued a 'loan licence' by the Drug Controller on the basis of which he can get the medicines manufactured through another manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, therefore, of prima facie view that the impugned order is contrary to the provisions of Clause V, VI and VII of Para 2 of the SSI exemption no.8/2003-CE and as such, the same does not appear to be sustainable. The appellant, therefore, have strong prima facie case in their favour and insisting on the requirement of pre-deposit of the duty demand, interest thereon and penalty would cause undue hardship. The requirement of pre-deposit of duty demand, interest and penalty is, therefore, waived and recovery thereof is stayed till the disposal of the appeal. Since there is difference of opinion between Member (Judicial) and Member (Technical), Registry is directed to place this matter before the Hon'ble President for constituting a Bench under Section 129 C(5) of the Customs Act, 1962 for referring the following points of difference for decision:- "Whether in the facts and circumstances of the case, the appellant have prima facie case in their favour warranting waiver of pre-deposit under Section 35 F? OR Whether the appellant have not been able to establish prima facie case and deposit of Rs.6.00 Lakhs is to be directed for compliance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of clearances of all excisable goods for hume consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers, does not exceed (rupees four hundred lakhs) in the preceding financial year." 13. The present case does not relate to the Condition No. (vi) in which one or more manufacturers are clearing the goods from a single factory. The dispute in the present case relates to Condition No. (v) and (vii) of para-2 of the Notification. It is therefore necessary to examine whether the appellants are manufacturer as per definition under Section 2(f) of the Central Excise Act. The manufacture or manufacturer has been defined under Section 2(f) of the Central Excise Act which reads as under - "2(f) 'the manufacture' includes any process, - (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of (the First Schedule) to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to [manufacture; or] (iii) which, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for exemption under this notification and the clearances of specified goods which are used as inputs for further manufacture of the specified goods within the factory of the production are to be excluded for the computation of aggregate value of the clearances. From the combined reading of para 2 and 3 of the notification it is noticed that the value of duty paid clearances cleared by a manufacturer are also to be included while computing the value of clearances of all excisable goods in the preceding financial year for computing the limit of Rs. 4 crores for the purpose of eligibility of the exemption notification for the current financial year. Therefore the value of the goods cleared by the appellant against loan license or job work basis from other units are to be clubbed for the purpose of ascertaining Rs.4 crore limit in the preceding financial year. 17. However, as regard the value of the clearances made in the current financial year under condition 3(b) the clearances bearing the brand name or trade name for other persons which are ineligible for exemption are to be excluded for computing the first clearances of Rs.1.5 crore. I find the goods cleared under a brand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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