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TMI Blog2019 (10) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, in such case, the duty paid by the assessee which has been accepted by the department and more than the credit availed. In that circumstance, the duty paid by the assessee shall amount to reversal of credit and the assessee is not required to reverse the credit. Admittedly in this case, the appellant cleared the said imported goods after refilling on payment of duty. Therefore, if the activity does not amount to manufacture, in that case, the duty paid by the appellant shall amount to reversal of credit. Therefore, the appellant is not required to reverse the credit of CVD availed by the appellant at the time of import - Demand set aside - penalty also set aside. Appeal allowed - decided in favor of appellant. - E/60117/2016, E/60450/2018 - FINAL ORDER No.60757-60778/2019 - Dated:- 3-9-2019 - Mr. ASHOK JINDAL, MEMBER (JUDICIAL) AND Mr. C L MAHAR, MEMBER (TECHNICAL) Shri Amarender Singh, Advocate for the Appellant Shri G. M. Sharma, AR for the Respondent ORDER The facts of the case in brief are that the appellant is engaged in the activity of manufacturing, trading of coding and marking equipment involving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not amount to manufacture, therefore, they are entitled to avail credit of CVD. Aggrieved with the said order, the appellant is before us. 5. The Ld. Counsel for the appellant submits that, this Tribunal vide Final Order No.60155-60156/2019 dt.22.2.2019 in their own case for the earlier period has set aside the demand confirmed against the appellant. Therefore the impugned order i be set aside and appeal be allowed. 6. On the other hand, Ld. AR submits that the appellant was having container printing ink reservoir with sump chip and for earlier period the demand was dropped on the ground that the said reservoir has been discontinued but in this case the appellant again manufacturing printing ink reservoir with sump chip, therefore, the said order is not applicable to the facts of this case. 7. In rebuttal, the arguments advanced by the Ld.AR, Ld. Counsel provided the details of demand confirmed against them and stated that there is bifurcation sought to be confirmed against which there is no demand confirmed against printing ink reservoir with sump chip. Therefore, the arguments advanced by the Ld.AR is not sustainable. 8. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 defines manufacture as under:- manufacture includes any process, - (i) incidental or ancillary to the completion of a manufactured product; (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 relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer,] and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 20. From the above provisions of section 2(f) defines the term manufacture in an inclusive manner which covers both the processes which are commonly understood as manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that the containers are specialized containers which are specially designed for the purpose of a printer and hence the process of filling and labelling amounts to manufacture. We find that neither these containers nor the ink manufactured by the appellant, therefore, by merely undertaking the process of filling of ink/labelling of the containers which would enable the container to be used for printing. 22. We have seen that the Hon ble Apex Court has examined the concept of manufacture in the case of Servo-Medi Industries Pvt.Ltd. (supra) wherein the Apex Court observed as under:- 10 . When a finished product cannot conveniently be used in the form in which it happens to be, and it is required to be changed into various shapes and sizes so that it can conveniently be used, no transformation takes place if the character and the end use of the first product continue to be the same. An illustration of this principle is brought out by the judgment in CCE, New Delhi v. S.R. Tissues, 2005 (186) E.L.T. 385 (S.C.). On facts, in the said case, jumbo rolls of tissue paper were cut into various shapes and sizes so that they could be used as table napk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that the characteristics of the tissue paper in the jumbo roll are not different from the characteristics of the tissue paper, after slitting and cutting, in the table napkins, in the toilet rolls and in the facial tissues. 13 . In the case of Brakes India Ltd. v. Supdt. of Central Excise Others reported in [(1997) 10 SCC 717], this Court has very aptly brought out the test of character or end-use by observing as follows : If by a process, a change is effected in a product, which was not there previously, and which change facilitates the utility of the product for which it is meant, then the process is not a simple process, but a process incidental or ancillary to the completion of a manufactured product. It will not be safe solely to go by a test as to whether the commodity after the change takes in a new name, though in stated circumstances, it may be useful to resort to it. This may prove to be deceptive sometimes, for it will suit the manufacturer to retain the same name to the end product also. The character or use test has been given due importance by pronouncements of the Supreme Court. When adopting a particular process, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, with a different nomenclature, character and end use. None of these requirements in our view is satisfied by the activity carried out by the appellant. The appellant does not even undertake that the mixture of the chemical, it not being disputed that the sodium bicarbonate purchased by the appellant from elsewhere already contained in it the required quantity of China clay and other chemicals which are required to ensure its free flow and give it its characteristics of fire extinction. We are not required to answer the question whether such mixing amounts to manufacture. The simple process of packing this chemical mixture into the fire extinguisher cannot by any stretch of imagination lead to manufacture. Its identity, use and nomenclature remains the same. The same reasoning holds true for carbon dioxide. Packing larger container into a smaller container of a gas cannot amount to manufacture. 5 . Merely because the Indian Standard specification uses the words dry powder charge it does not become a specific commodity different, liable to duty. One of the meanings of the word charge in The New Shorter Oxford Dictionary is the quantity of something whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. The process adopted by them for changing the form of the wax from lump to washers cannot be equated to the process of manufacture keeping in view the test of manufacture laid down by the Apex Court in the above referred cases. Therefore, the impugned order of the Commissioner (Appeals) holding the product in question (wax washers) to be not dutiable being not a manufactured product is perfectly valid and deserves to be affirmed. 28. On the analysis of the above cited judgments, we find that the character, name and use of the printing ink does not change. Therefore, the process of refilling and relabeling which enables the products to be used with printing ink does not amount to manufacture 29. We find that the Commissioner has classified of the goods of sub heading 8443 30 10 as parts accessories of the goods of heading 8443 39 as machines classifying under heading 8443 39. The Commissioner has held as new product classified under the aforesaid heading has come into existence amounts to manufacture. This approach is totally erroneous as the printing ink has been imported in bulk drums which are never questioned by the department but the Commissioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be imposed. We also take note of the fact that there is no deeming provision of refilling amounting to manufacture as per chapter notes of Central Excise Tariff relating to impugned goods. Section 2(f) (ii) provides certain specified activities are deemed to be amounting to manufacture as set out in Section or Chapter Notes of the First Schedule to the Central Excise Tariff Act, 1985. The appellant has imported ink which was refilling in various containers as also the impugned items were imported and assessed under chapter heading 3215 of the Customs Tariff, which is pari material to the Central Excise Tariff and character, nature and use of the ink have admittedly not undergone any change and these remained classified under heading 3215 90 90. After refilling/relabeling the same shall remain be classified under heading 3215 90 90, therefore, does not amount to manufacture. Further, we take note 7 to chapter 32 deems certain activities in respect of certain goods of the chapter as manufacture. The said provisions are extracted herein below: 7. In relation to products of tariff items 3204 19 81, 3204 19 82, 3204 19 83, 3204 19 84, 3204 19 85, 3204 19 86, 3204 19 87 ..... 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