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TMI Blog2016 (9) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are admittedly includes in the “Third Schedule”. Given the wide scope of above definition re-packing of the goods after marking that with the supply order No. and number of objects inside the package and other necessary details for easy identification at the consignee’s end would be squarely covered under the definition of manufacture because without such markings the product could not have been sold to the Customer which in this case is the Defence Department of Government of India because the agreements between the Ordinance Factory and the respondent, required the respondent to do so. Whether the respondent is entitled to the benefit of Notification No.64/95-CE even though, it had not followed the procedure prescribed under Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the respondent that had it been of the view that the process undertaken by it amounted to manufacture, it was easy for it to follow the Chapter 10 Procedure and claim the benefit of Notification No. 64/95 - CE. In this regard, it is also pertinent to mention that observance of “chapter 10” Procedure for claiming the exemption Notification benefit is a mandatory requirement has been settled by the Five Member Bench of the Hon’ble Supreme Court in the case of Commissioner vs. Harichand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT OF INDIA] and prior thereto there were some decisions of the lower courts to the effect that observance of said procedure was only procedural requirement in which case during the relevant period the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the definition of manufacture given in Section 2 (f) (iii) of Central Excise Act, 1944. (2) Whether the respondent is entitled to the benefit of Notification No.64/95-CE even though, it had not followed the procedure prescribed under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods), Rule 2001. (3) Whether the extended period is invokable . 2. Heard both sides. 3. For the sake of convenience the definition of manufacture given in Section 2 (f) (iii) of the Central Excise Act ibid reproduce below:- Manufacture includes any process: (iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the contention of the respondent that had it been aware that this process would amount to manufacture, it would have taken the benefit of Notification No.64/95- CE because the goods were supplied to Defence Department of Government of India for manufacture of vehicles falling under Chapter heading 87 and that the procedure prescribed, namely, the procedure under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 was just a procedural requirement and therefore, the substantive benefit would not be deniable on account of non-following of the same. Ld. Advocate for the respondent, however, fairly conceded that this issue stands settled by the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - in as much as they failed to pay the duty of excise on the said goods at the time of their clearance as required; ii. Rule 6 - inasmuch as they failed to assess by themselves the duty of excise on the goods manufactured and cleared by them; iii. Rule 8 - inasmuch as they failed to pay duty on the due date as required under the rule ibid; iv. Rule 9 - they had not got themselves registered with the department, for the manufacture of excisable goods, manufactured and cleared by them; v. Rule 10 - inasmuch as they failed to record the actual production of the finished goods in their daily stock register; vi. Rule 11 - in as much as they did not remove the goods under the cover of an invoice prescribed under the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were some decisions of the lower courts to the effect that observance of said procedure was only procedural requirement in which case during the relevant period the appellant could possibly have legitimately claimed the exemption benefit even without following the said Procedure. Thus, there is force in the respondent s contention that there was no reason for it to indulge in wilfull misstatement or suppression of facts. In the case of Uniworth Textiles Ltd. vs. CCE, Raipur [2013 (288) ELT 161 (SC)], it was held that mere non-payment of duties is not equivalant to collusion or willful misstatement or suppression of facts, otherwise there would be no situation of which ordinary limitation period would apply. Inadvertent non-payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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