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TMI Blog2006 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. Name of the appellant Period involved Date of issue of SCN Adjudication Levies duty E/608/05 Mallika Saree Processing 1-4-03 to 22-7-03 17-11-03 Duty 17,79,491/-Penalty Rs.20,000/-(Rule 25) RF Rs. 62,000/- RF on vehicle Rs. 12,000/- S/669/05 Prakash Saree Processing 13-9-02 to 23-3-03 1-4-03 to 5-7-03 12,11-03 Duty 32,72,031/- E/670/05 Gayathri Textile Processing 1-3-02 to 13-8-02 25-9-03 Duty 5,30,110/- Penalty 10,000 E/671 /05 Rajalakshi Textile Processing 1-3-02 to 31-1-03 25-9-03 Duty 2,79,794/- 3/672/05 Venkateswara Saree Processing 1-3-02 to 31-8-03 25-9-03 Duty 5,40,270/- E/943/05 Sai Vishnu Processing 1-3-02 to 30-11-02 19-8-2004 Duty 27,13,971/- E/411/03 Raja Exports 1-3-02 to 12-8-03 4-11-03 Duty 5,77,685/- 2. The issue involved in these matters is as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for deemed credit as per Notification No. 6/02-N.T., dated 1-3-2002. The same is required to be extended. Alternatively, the plea is that besides this benefit, they are eligible for cum duty price benefit. It is further contended that the process of blowing is exempted right from 1996 vide Notification No. 9/96, dated 23-7-1996 and hence the question of confirming demand does not arise. It was pleaded that till 2002, the department itself did not initiate action for recovery with a view that decatising is nothing but blowing. It is submitted that the action has been initiated in March, 2002 merely because in the Notification No. 6/02 "blowing" was omitted. However it was restored by subsequent notifications namely 26/02 and 47/02 and hence the subsequent notifications are nothing but clarificatory in nature and in terms of the Tribunal ruling rendered in the case of Apex Steels Pvt Ltd v. CCE, Chandigarh [1995 (80) E.L.T. 368]. Such amendment would amount to be treated as clarificatory in nature and hence, demands cannot be raised for the periods in question. It was also submitted that as per the New Textile Policy, with effect from 1-4-2003 duty liability is not on job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same as calendening. However the Counsels pointed that it is not their case that calendering and decatising is one and the same and hence this judgment is distinguishable. Learned SDR filed detailed written submissions on behalf of the Commissioner. The Commissioner has contended in the submissions that the process of decatising is not identical to the process of blowing/steam pressing which had specifically been exempt under Notification No. 47/2002-C.E., dated 6-9-2002. It is submitted that blowing/steam pressing is exempted only for woven fabrics of acrylic fibre. It is submitted that Notification No. 14/02-C.E., dated 1-3-2002 as amended by Notification No. 40/02-C.E., dated 14-8-2002 vide Sl. No. 17 charged woven fabrics subjected to the process of calendering or decatising or both to 16% ad valorem . Therefore it shows the legislative intention to charge the woven fabrics subjected to the process of calendering or decatising. It is submitted that once, the process of decatising is completed, the sarees are neatly stacked and put to sale being ready to use and hence it is a process of manufacture. It is contended that the Notification No. 40/02-C.E., dated 14-8-2002 is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representations given by the Associations of Textile manufacturers to the Chief Commissioner and the whole issue being in correspondence was known to the department. In view of this fact, it cannot be alleged that there was suppression of facts with an intention to evade duty. For the purpose of attracting Proviso to Section 11-A of the Act, the assessee should be statutarily bound to declare certain details to the department and those details if they have withheld with an intention to evade duty, only then the Proviso to Section 11-A can be invoked as held by the Apex Court in large number of judgments. More particularly in the case following cases. Chemphor Drugs Liniments [1989 (40) E.L.T. 276 (SC)] Cosmic Dye Chem [1995 (75) E.L.T. 721 (SC)] Pushpam Pharmaceuticals [1995 (78) E.L.T. 401 (SC)] Singareni Colleries [1988 (37) E.L.T. 361 SRB] Padmini Products [1989 (43) E.L.T. 195 (SC)] The demands due in all the cases except Rajesh Exports are clearly barred by time. They are set aside including the penalty imposed. 7. The first issue in this matter is as to whether the process of decatising is a process of manufacture? The process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w goods and is not a process of manufacture is required to be upheld. 8. Learned SDR referred to the Mumbai Bench Order rendered in the case of Deepak Fabrics cited supra wherein a view has been taken that decatising process is not calendering. The contention of the appellant is different and not as held in this judgment. Their contention is that decafising process and blowing process is one and the same in view of the "Sasmira's" technical opinion which is based on authorities referred in that opinion. Thus we have to hold that this process of decatising is not a process of manufacture and hence no duty can be levied. Even otherwise as can be seen the department has clearly taken a stand that there was no levy of duty on this process in terms of the Notification No. 3/01, dated 1-3-2001 and Notification No. 6/02, dated 1-3-2002. No demands have been raised for periods prior to 1-3-2002. The dispute has arisen only after 1-3-2002. In the budget 2002-03, the woven fabrics falling under Chapter 54 or 55 subjected to the process of calendering and decatising or both on job work basis in a factory were brought under Excise with effect from 1-3-02 by withdrawing the exemptions. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious judgments already noted supra. In effect, (a) We hold that the demands are barred by time. (b) That the process of decatising and process of blowing are one and the same and as blowing was exempted, therefore it follows that the process of decatising is also clearly exempted from levy of Excise duty. The Notification No. 47/02, dated 6-9-2002 is clariificatory in nature and hence it has got retrospective effect from 1-3-2002. (c) The process of calendering is not a process of manufacture and no duty can be confirmed. The demands on the job workers from 1-3-2003 is not leviable as Rule 12(B) vide Notification No. 24/03-NT, dated 25-3-2003 and the Govt's press Note 25-3-2003 clearly clarifies that the duty has to be levied only on the weavers/dealers and owners of fabrics and not on job workers. The last contention raised by the appellant is that the duty from 1-3-2003 is not leviable on the job workers as Proviso to Rule 12(B) vide Notification No. 24/03, dated 25-3-2003 and Govt's Press Note 25-3-2003 are as a result of the rule declaring that the duty has to be levied only on the weavers and dealers and owners of fabrics and not on job workers. Therefore, the confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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