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TMI Blog2021 (9) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Counsel, for the Respondent ORDER These appeals are directed against Order-in-Original No. Belapur/93/Taloja/R-I/Commr/KA/2013-14 dated 30.09.2013, Order-in-Original No. Belapur/03/Taloja/R-I/Commr/KA/2013-14 dated 15.05.2014 and Order-in-Original No. Belapur/02/Taloja/R-I/Commr/KA/2013-14 dated 15.05.2014 passed by the Commissioner of Central Excise, Belapur. 1.2 In Order-in-Original No. Belapur/93/Taloja/RI/Commr/KA/2013-14 dated 30.09.2013, the Commissioner has held as follows: ORDER 1. I hold that the activity of labeling undertaken by the assessee in their factory at Taloja does not amount to manufacture. 2. I demand the wrongly availed credit of ₹ 6,33,22,839/- (Rupees Six Crores Thirty Three Lakhs Twenty Two Thousand Eight Hundred Thirty Nine Only) under provisions of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(10) of the Central Excise Act, 1944. 3. I demand interest at the appropriate rate under Rule 14 of Cenvat Credit Rules, 2004 read with section 11AA of the Central Excise Act, 1944, which shall be collected on the amount of ₹ 3,39,465/- being the amount of credit availed and utilized by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taloja does not amount to manufacture. 2. I demand the wrongly availed credit of ₹ 5,28,28,266/- (Rupees Five Crores Twenty Eight Lakhs Twenty Eight Thousand Two Hundred Sixty Six Only) under provisions of Rule 14 of CENVAT Credit Rules, 2004 read with Section 11A(10) of the Central Excise Act, 1944. 3. I demand interest at the appropriate rate under Rule 14 of CENVAT Credit Rules, 2004 read with section 11AA of the Central Excise Act, 1944, which shall be collected on the amount of ₹ 8,79,455/- being the amount of credit availed and utilized by the assessee. 4. I impose a penalty of ₹ 5,28,28,266/- under the provisions of Rule 15(2) of CENVAT Crdit Rules, 2004 read with section 11AC(1)(a) of the Central Excise Act, 1944. However, the penalty will be reduced to 25% of the above amount if the assessee pays the duty determined along with interest within 30 days of receipt of this order. The reduced penalty 25% of the amount of duty so determined is available to the assessee only if the 25% of the penalty is also paid within the period of thirty days of receipt of this order. Otherwise the penalty imposed under Section 11AC(1)(a), equal to the duty am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us chapter notes including note 3 to Chapter 18 substituting the word and with or . The amendment is made with a view of separate each of the activities covered by note 3 to Chapter 18 to be independent activities and each of them deem to be manufacture. 6.9 In my view, labelling per se will amount to manufacture in view of the first part of note 3 of Chapter 18. There is no requirement in said note 3 that the labelling should enhance the marketability. It only the last part of note 3 that provides for adoption of any other treatment to render the product marketable. The note 3 is deeming provisions. It deems three of the specified activities as deemed manufacture. 6.10 In view of admitted position both in the show cause notice and in the impugned order that the Appellant have undertaken the activity of labelling, I agree with Member (Judicial) that that the activity of the appellant is covered by note 3 to Chapter 18 and the activity of the Appellant of labelling the goods received from Jammu factory amounts to manufacture. 6.11 Both sides relied upon the judgment of the Hon'ble Apex Court in the case of Liquide North India Pvt. Ltd. - 2011 (271) ELT 321. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the same is issued along with the item to the consumer. 6.14 In the above context, the Hon'ble Supreme Court of India in paragraph 21 held as under: 21. So far as the issue with regard to re-labelling is concerned, we are in agreement with the view expressed by the Tribunal that re-labelling would not mean mere fixing of another label. When the Appellant was selling different certificates to its different customers, we can say that the appellant was virtually giving different marks of different labels to different cylinders having different quality and quantity of gas. 6.15 It can be seen that what is approved by the Hon'ble Supreme Court of India is the findings of this Tribunal in paragraph 6 to the effect that for re-labelling purposes, it is not essential that label should be re-fixed on the article, it would be enough if the same is issued along with the item to the consumer. 6.16 It can be seen that the Hon'ble Supreme Court of India has not held that what is understood by the learned Commissioner or being argued on his behalf. 6.17 I find that the Appellant have relied upon the decision of this Tribunal in the case of Nestle India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (Tri. - Mumbai)] = 2002-TIOL-500-CESTAT-MUM, four tablets were put in a single pack with a view to maintain the continuity and regularity of intake of these four drugs which were the main anti-tuberculosis drugs. These four tablets were not mixed together to form only one tablet. We, therefore, hold that the process carried out by the appellant render the product marketable as inter-mixture of vitamins and as such the activity amounts to manufacture. 6.19 In pursuance of a remand order passed by the Hon'ble Supreme Court of India, this Tribunal in its order reported in 2009 (235) ELT 577 held as under: 70. While applying the law laid down by the Apex Court in relation to legal fiction created by the statutory provision under Note 11 of Chapter 29 quoted above, we will have to primarily ascertain the purpose behind introducing the said Note 11. The Note certainly relates to connotation of the term manufacture and it seeks to widen the scope thereof by including the activities which would otherwise fall outside the scope of the definition of the said term under Section 2(f) of the said Act. Therefore, the purpose for which the said Chapter Note has been introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d labelling is under taken... Paragraph 5.2 ....No packing or repacking activity is undertaken at Taloja Unit, except in the case imported goods.... 6.23 I find that from page 140 of the appeal paper book shows that the tare weight of the cartons at the time of import, which varied from 0.550 grams to 1 Kg., whereas the tare weight of carton used by the Appellant for re-packing was 0.750 grams. The other documents on record such as packing list of the supplier at the time of import and packing list of the appellant at the time of export to substantiate the above contention. There no dispute raised by the Commissioner in his impugned order that tare weight of the cartons of imported coco butter is different from the tare weight of the carton used for export of imported coco butter in the light of the documents produced by the Appellant. 6.24 I further find from the statement of Mr. Ramkrishna Dubey recorded during the visit to the Appellant factory at Taloja in which he clearly stated that the Appellant repacked the imported coco butter. I find that there is no rebuttal to the said statement. The Appellant contention of repacking of imported goods is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since no stay granted, we are not in agreement with the submissions made by the learned Special Counsel for keeping this matter pending. Even the early hearing application filed by the revenue in the matter has been dismissed by the Hon ble Apex Court vide its order dated 06.09.2019 observing as follows: Having heard learned counsel for the appellant/applicant, we find no ground to entertain the application for early hearing and the same is accordingly dismissed. 3.4 Even in the case of Cargill India Pvt. Ltd. [2019 (366) ELT 194 (SC), referred to by the learned Special Counsel, the issue was not in respect of the same appellant for which the appeals were disposed. The said order of Hon ble Apex Court is reproduced below: 2 . The issue of classification is raised in this appeal. The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) in the impugned order [2017 (353) E.L.T. A99 (Tribunal)] had noted that the said issue of classification is pending in this Court in other appeals. On that basis the CESTAT has disposed of the appeal. Liberty is also given to approach the CESTAT after the verdict of this Court in the appeals pending here. In that view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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