9911796707
TMI Blog2015 (1) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... apter sub-heading No. 2403 10 31, without aid of machine and cleared the said goods on payment of basic excise duty at the rate of Rs. 14/-, Education Cess and Secondary Higher Education Cess, as applicable, per thousand biris. The Appellants were also engaged in the manufacture of branded biris known as "Super Kishan Biri No. 51". classified it under sub-heading No. 2403 10 39. These biris are packed in pre-printed plastic wrappers (brought from outside) with the aid of power operated machine and cleared on payment of basic excise duty at the rate of Rs. 26/-, Education Cess and Secondary Higher Education Cess, as applicable per thousand biris, prior to August, 2008. However, from August, 2008, the Appellants cleared the said "Super Kishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irming duty short paid, which arose on mis-classification and dropped the penalty against the Appellant. Aggrieved by the said Order of the ld. Commissioner (Appeals), the present appeal filed by the assessee-appellant before this Forum. 3.1 The ld. Consultant appearing for the Appellants, had submitted that the biris are manufactured by the various households and brought to the factory in a basket for heating and roasting and then the same are packed in pre-printed plastic strips with the help of machine. It is his submission that no re-packing is involved as observed by the ld. Commissioner (Appeals), which is contrary to the facts of the case as narrated in the Review Application dated 9-12-2009 filed by the Revenue before the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified under Third Schedule to CETA, 1985, therefore, the process of packing of biris with the aid of machine, cannot be construed as amounting to manufacture with machine under Section 2(f) of the Central Excise Act, 1944. Further he has submitted that since the packing is not an integral process of manufacture of biris, therefore, use of power is irrelevant. In support, he relied upon a judgment of the Hon'ble Supreme Court in the case of Commr. of Central Excise, Nagpur v. Gurukripa Resins Pvt. Ltd. - 2011 (270) E.L.T. 3 (S.C.). 4. The ld. A.R. for the Revenue reiterated the findings of the ld. Commissioner (Appeals). He submits that the ld. Commissioner (Appeals) has rightly held that the judgments of Jalco Enterprises (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute centres around the fact of use of machine with the aid of power in packing biris. The ld. Commissioner (Appeals) got the fact verified through the Assistant Commissioner before directing its classification. The Assistant Commissioner after verification of the manufacturing process in his report dated 4-9-2008, observed the step by step manufacturing process as follows : 1. Issue of Biri tobacco, thread, etc. to biri roller/contractor; 2. Received hand-made Biri from Biri rollers/contractor; 3. Checking of rolled bundle of twenty (20) biris for toasting; 4. Toasting of biri bundles over furnace; 5. &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that the ld. Commissioner's (Appeals), Order is based on the premise that the Applicant is undertaking re-packing of biris, a fact totally untrue and hence, conclusion arrived at by the ld. Commissioner (Appeals), is accordingly, erroneous. We find force in the contention of the ld. Consultant for the Applicant. The show cause notice was issued to the Applicant alleging short payment of duty because of incorrect classification of biris. It is alleged that since the machines running with the aid of power, had been used in packing biris known as "Super Kishan Biri No. 51", therefore, it would be classifiable under sub-heading No. 2403 10 39 instead of sub-heading No. 2403 10 31. It has not been an issue for determination whether label ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
