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TMI Blog2021 (6) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a manufactured product in section 2(f) of Central Excise Act, 1944. It is not the case of Revenue that the impugned goods, before or after repacking, are not baby diapers or sanitary napkins but that they do correspond to the description in serial no. 55 of the Third Schedule to Central Excise Act, 1944 - As baby diapers or sanitary napkins are not enumerated in the Third Schedule to Central Excise Act, 1944, their incorporation in notification no. 4/2006-CE dated 1st March 2006 does not suffice for excisability under deemed manufacture to be invoked. It offends the validity of a tax demand to be founded on a judgement except for the dispute that it purports to resolve; only the relevant statute, subject to judicial in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that continued till June 2011. In accordance with the agreement, the latter provided diapers and packing material along with specifications to the former who were to undertake packing and storage with responsibility for compliance with legal prescriptions. It was alleged that baby diapers and sanitary napkins were rendered liable to duties of central excise in notification no. 10/2010-CE dated 27th February 2010 by inserting these descriptions at serial no. 96B and serial no. 96C in notification no. 4/2006-CE dated 1st March 2006 despite which the goods were cleared without discharge of the levy arising therefrom. M/s Y Associates were held liable to duty of ₹ 1,26,51,977 for having undertaken manufacture within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the liability did devolve. 3. Learned Counsel for appellants contests coverage within the Third Schedule to Central Excise Act, 1944 sans which the components that make up manufacture in section 2(f) of Central Excise Act, 1944 are irrelevant in determining excisability. It was pointed out that Cleansing or facial tissues, handkerchiefs and towels of paper pulp, paper, cellulose wadding or webs of cellulose powders intended to be covered by section 2(f)(iii) of Central Excise Act, 1944 at serial no. 55 of the Third Schedule, is but that part of the description corresponding to heading no. 4818 of the Schedule to Central Excise Tariff Act, 1985 which is Toilet paper and similar paper, cellulose wadding or webs of cel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Jute Mills Ltd and another v. Assistant Collector of Central Excise [1993 (66) ELT 574 (Cal)]. 5. We find that dispute has its origins in the inclusion of the impugned goods, with effect from 27th February 2010, in notification no. 4/2006-CE dated 1st March 2006 prescribing effective rates of duty and the undisputed fact that baby diapers and sanitary napkins , imported in bulk, are repacked for the retail market. The definition of manufacture , which 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 or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re covered by an entirely different residuary tariff item of the Schedule to the Central Excise Tariff Act, 1985 within another categorization at the level of sub-headings, does not appear to have been given due evaluation by the adjudicating Commissioner. 6. It is apparent from the schema of deemed manufacture that emergence of goods of another description from any process to which the enumerated goods are subjected to would take it outside the scope of deemed and requiring conformity with the general comprehension of manufacture or be incidental or ancillary to the completion of a manufactured product in section 2(f) of Central Excise Act, 1944. It is not the case of Revenue that the impugned goods, before or after repacking, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods to be deemed to have been manufactured is but semantic contortion for enabling overreach by the tax administrator. 8. The decision of the Tribunal in re Kohinoor Tissue Converting Co, in relation to enumeration of goods that are required to be assessed under section 4A of Central Excise Act, 1944 and, though not in the context of comparison of the relevant heading in the Schedule to Central Excise Tariff Act, 1985 with description in Third Schedule of Central Excise Act, 1944, holding that 4.2 From a reading of the tariff, it is abundantly clear that the tariff itself distinguishes toilet paper and cleansing or facial tissues. While toilet paper falls under CETH 4818 10 00, cleansing or facial tissues fall under 4818 20 00. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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