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TMI Blog2015 (2) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant were required to pay duty on MRP basis as per Section 3 of the CTA 85. The appellant was fixing sticker in their warehouse after clearance of the goods by discharging duty on the basis of MRP less abatement, the Revenue issued a show-cause notice to the appellant on the premise the activity of fixing stickers amount to manufacture as per Section 2(f)(iii) of the Central Excise Act, 1944. In that case also the goods after importation, wherever it was found that label/sticker was damaged or missing, the activity of labeling of sticker on the said goods took place and the contention of the appellant was that, their activity does not amount to manufacture. In that case, we held that as the activity of fixing MRP stickers took place after clearance of goods from Customs. Therefore, as per Section 2(f)(iii) of the Central Excise Act, 1944, the activity undertaken by the appellant amount to manufacture. In that case, we held that merely putting the stickers shall amount to manufacture. Therefore, following the said decision, we are of the confirmed view that in this case also the activity of fixing labels undertaken by the appellant, which is not in dispute, shall amount t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured from Jammu as well as on the imported goods. As the labels were already fixed on the boxes therefore additional labels affixed by the appellant does not amounts to manufacture as affixing of additional label does not enhance the marketability (as the goods are already marketable). Therefore, impugned proceedings were initiated against the appellant to deny the CENVAT Credit taken by them and consequently denying the rebate claim sanctioned to the appellant along with interest and penalty. The adjudicating authority confirmed the demand as stated in para 1 here-in-above. Aggrieved by the said order, the appellant is before us. 3. Heard both sides. 5. Learned Counsel appearing for the appellant submitted that the show-cause notice admits that the appellant was doing the activity of 8.We have heard the learned Counsel for the parties and perused the records. In view of Chapter Note 10 to Chapter 28 of the Act, the manufacturing activity would mean either; (a) Labelling or re-labelling of containers and repacking from bulk packs to retail packs; OR (b) An adoption of any other treatment to render the product marketable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that after receiving the goods at Taloja Unit, the appellant is affixing two labels on the packages on two different sides and exporting the same. 8.1 In the show-cause notice, it is alleged that in the container which is labeled or relabeled to render the product marketable to the consumer. The process adopted by the appellant in the case of goods received from J K is only affixing label on the boxes stating labeled at Taloja. These boxes received from J K already printed stating the description of the product. In case of imported goods, repacking the same in new boxes and labeling is undertaken. The Cocoa Butter so received is as such marketable without labeling or repacking. Therefore, the process of labeling or relabelling cannot be termed as process undertaken to render the product marketable to the consumer. It is also alleged that as per the Note 3 to Chapter 18 of the Central Excise Act, 1944, the crucial requirement is that by adoption of process the product is marketable to the consumer. It is clear that the product in question is already marketable as such and change in the label encrypting labelled at Taloja does not make any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anomaly is being rectified by amending the relevant Chapter Notes. (Notification No. 11/2008-CE (N.T.) refers). 8.8 In the impugned order, the learned Commissioner has tried to read the definition quoting the word and instead of or. Therefore, he reads as 16.A bare reading of the said Rule would indicate that the manufacturer or the provider of the output service becomes liable to pay interest along with the duty where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded and that in the case of the aforesaid nature the provision of Section 11AB would apply for effecting such recovery. 17.We have very carefully read the impugned judgement and order of the High Court. The High Court proceeded by reading it down to mean that where CENVAT Credit has been taken and utilized wrongly, interest should be payable from the date the CENVAT Credit has been utilized wrongly for according to the High Court interest cannot be claimed simply for the reason that the CENVAT Credit has been wrongly taken as such availment by itself does not create any liability of payment of excise duty. Therefore, High Court on a conjoint reading of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouse after clearance of the goods by discharging duty on the basis of MRP less abatement, the Revenue issued a show-cause notice to the appellant on the premise the activity of fixing stickers amount to manufacture as per Section 2(f)(iii) of the Central Excise Act, 1944. In that case also the goods after importation, wherever it was found that label/sticker was damaged or missing, the activity of labeling of sticker on the said goods took place and the contention of the appellant was that, their activity does not amount to manufacture. In that case, we held that as the activity of fixing MRP stickers took place after clearance of goods from Customs. Therefore, as per Section 2(f)(iii) of the Central Excise Act, 1944, the activity undertaken by the appellant amount to manufacture. In that case, we held that merely putting the stickers shall amount to manufacture. Therefore, following the said decision, we are of the confirmed view that in this case also the activity of fixing labels undertaken by the appellant, which is not in dispute, shall amount to manufacture as per Note 3 of Chapter 18 of the CETA although this activity does not enhance the marketability of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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