9911796707
TMI Blog2021 (10) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the respondents were right in law in having issued the impugned show cause notices inspite of binding judicial precedents to the opposite effect and (ii) whether the assembly of prescription lenses on to a spectacle frames is an activity that amounts to manufacture attracting levy of duty under the Act. The petitioners would specifically confirm that manufacture of the power lens i.e., the conversion of lens blanks into prescription lens is a taxable activity and that such activity takes place in the workplace/factory. They also confirm that the frames used are either imported or manufactured indigenously in a factory, subject to central excise duty. These two activities i.e. manufacture of the spectacle frames and prescription lenses are, admittedly excisable events and the petitioners are liable to remit duty in regard to the aforesaid two events, where applicable. The petitioners also engage in sale of ready-made eye-wear that is purchased by customers, off-the-shelf. Post manufacture of the spectacle frames and lenses, the goods are sent separately to the petitioners show rooms and what is undertaken in the show room is only an assembly of the prescription lenses and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the 457 noticees were spread all over the country and to avoid multiplicity of proceedings. 3. The petitioner in W.P. No.1039 of 2017 is a Director of Premier Optical Pvt. Ltd. and has approached this Court, since the show cause notice mulcts liability on her as the person responsible for the operations of the Company. Pursuant to the SCNs, the petitioners are now in receipt of personal hearing intimation notices calling for their appearance, at which stage, they have approached this Court by way of the present writ petitions. 4. Essentially, the process leading to manufacture of a product/commodity would involve appreciation of facts that are best left to the officers of the concerned Department. Thus, and to get over the question of alternate remedy, the petitioners would immediately draw my attention to a judgment of the Hon'ble Supreme Court in the case of Assistant Commercial Tax Officer Vs. Mehta Opticians (Civil Appeal No.773 of 1995) confirming the decision of the Rajasthan High Court on the very issue that falls for consideration in this batch. 5. The short judgment of a three Judge Bench is on point, and reads as under: 'This is how Ground A (a) of the Special Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any vs. Additional Commissioner of Commercial Taxes (Cal.HC) (1978 42 STC 248) or Amazon Seller Services Private Limited vs. Commissioner of Central Excise, Thane-I (2016 (3) TMI 69) (cited before me). As far as Titan is concerned, no reply to the SCN has been placed before the Court. 8. Reliance in this context, is placed upon the judgement of the Hon'ble Court in the case of Hindustan Poles Corporation V. CCE (2006 (256) ELT 481(SC)), to the following effect: '40. Before we part with this case we would like to impress upon the respondent authorities that before issuance of show cause notices the Revenue must carefully take into consideration the settled law which has been crystallized by a series of judgments of this Court. The Revenue must make serious endeavour to ensure that all those who ought to pay excise duty must pay but in the process the Revenue must refrain from sending of indiscriminate show cause notices without proper application of mind. This is absolutely imperative to curb unnecessary and avoidable litigation in Courts leading to unnecessary harassment and waste of time of all concerns including Tribunals and Courts'. 9. Additionally and in order to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s frames inside cases' was that cases were generally received separately from the spectacles and the sunglasses, from the manufacturers. The case and the glass/spectacle were first identified, then matched. In some cases, the screws at the temples and the hinges on eyewear could have become loose during storage and this was repaired with the help of a screw driver. 13. The argument of the Revenue was that when lenses were fitted in frames, a distinct marketable product emerged, since a frame and lens separately, and without integration did not have any marketability. However, the case of the petitioner was accepted by the Authority, placing reliance upon the decision of the Calcutta High Court in the case of Bholanath Sreemany (supra), 14. Yet another argument advanced was that though the petitioner has been engaged in the same activity for several years, the impugned show cause notices had come to be issued in 2016 without there being any justification in that regard or any change in circumstances. Having accepted the stand of the petitioner for many years to the effect that the activity of assembly of frames and spectacles did not constitute manufacture, there was no justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure To check the base curve of the lens 18 Thickness gauge with dial To check the spectacle lens thickness 19 Near vision chart-qty 3 To check the near vision 20 Semi auto edger To give the desired shape to the lens 21 Supra Grooving machine To make the o for supra frame lenses 22 Rimless drilling machine To make the holes in the lens 23 Hand edger To polish the edges of the lens 24 Screw dispenser - Tip adjuster To keep all the of screws and nose pad 17. That apart, the show room has also had the facilities for eye testing, the grinding of spectacle lenses and fixing of lenses in the spectacle frame to make a spectacle. The technicians were trained to do the work of cutting, edging, grinding of the lenses and fit the same in the frame to make a complete spectacle. For the aforesaid purposes, the following machines were used. Sr. No. Description Function/Usage 1 Hand Edger Used for manual edging of the pattern. 2 Auto Edger Used for auto edging (cutting and edging) of the lenses. 3 Blocker Machine Used for measurement of Intra Papillary Distance, i.e. the location of the axis and height of centre of eye. 4 Rimless Drillin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acles were delivered to the customer with a spectacle case, lens cleaning cloth, invoice, "Titan Eye +" warranty card in a paper bag; that all these goods were provided by M/s.Titan. The officers also resumed certain documents, sample spectacle case, lens cleaning cloth, paper bag, etc. under Panchnama dated 27.08.2015, drawn on the spot (RUD-3). 19. In addition a warranty was also extended to the customers. All in all, the Revenue is of the view that the processes involved in the activity were complex and complicated enough to constitute 'manufacture'. Moreover, the activities led to the conversion of raw materials, being prescription lenses and spectacle frames, into a marketable commodity, being a spectacle, a commercially distinct product. 20. To a pointed query put by the Court, the petitioners would specifically confirm that manufacture of the power lens i.e., the conversion of lens blanks into prescription lens is a taxable activity and that such activity takes place in the workplace/factory. They also confirm that the frames used are either imported or manufactured indigenously in a factory, subject to central excise duty. These two activities i.e. manufacture of the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
