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TMI Blog2022 (3) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Officers, during their visit to the factory; that the appellants filed further declaration before the department on 08.04.2009, explaining inter alia, with the help of drawings designs that the process undertaken for conversion of Crude Sulphur into Sulphur Powder by pulverization process will not amount to manufacture. It can safely be concluded that the ingredients itemized in the proviso clause appended to Section 11A ibid have no application in the case of the present appellants for invocation of the extended period of limitation for confirmation of the adjudged demands. The present appeals are allowed by way of remand to the learned Commissioner of Central Excise, having jurisdiction over the factory of the appellants to decide and adjudicate on the subject issue, whether the disputed goods emerge as a result of manufacturing activity and confirm to the definition of manufacture contained in the definition clause provided under Section 2(f) ibid. - Excise Appeal No. 817 of 2011 with Excise Appeal No. 1705 of 2011 - A/85183-85184/2022 - Dated:- 8-3-2022 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri M .H. Patil, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders dated 15.02.2011 passed by the learned Commissioner (Appeals) and dated 24.08.2011 passed by the Commissioner of Central Excise, Thane-I (hereinafter, for short referred to as the impugned orders ), the appellants have preferred these appeals before the Tribunal, which were registered as Appeal Nos. E/817/2011 and E/1705/2011 respectively. 2. Shri M.H. Patil, learned Advocate appearing for the appellants submitted that the activity of conversion of crude Sulphur lumps/Granules into Sulphur powder would not amount to manufacture, as per the definition contained in Section 2(f) ibid. In support of such submission, the learned Advocate has relied upon the following judgments delivered by the Hon ble Supreme Court: (i) Osnar Chemicals Pvt Ltd. 2012 (276) ELT 162 (SC) (ii) Tarpaulin International 2010 (256) ELT481 (SC) (iii) S.R. Tissues Pvt. Ltd. 2005 (186) ELT 385 (SC) (iv) A.R. Thermosets (PVT) Ltd. 2016 (339) ELT 500 (SC) (v) Grasim Industries Ltd. 2011 (273) ELT 10 (SC) (vi) Rajasthan State Chemical Works 1991 (55) ELT 444 (SC) 2.1. Learned Advocate further submitted that even if such process of conversion is held to be amounting to manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps/Granules into Sulphur Powder, would amount to manufacture , as per the definition of said phrase contained in Section 2(f) ibid. 5.1 In respect of the Appeal No. E/1705/2011 (arising out of the impugned order dated 24.08.2011), the department had issued the SCN dated 13.04.2011, proposing for confirmation of the duty demand along with interest and for imposition of penalty on the appellant. The period of dispute involved therein is from 01.04.2006 to 31.12.2010. The proviso clause appended to Section 11A ibid was invoked by the department for confirmation of the adjudged demands on the appellants. 5.2 Section 11A ibid deals with the situation for recovery of duties not levied or not paid or short-levied or short-paid or the circumstances, where the refund has erroneously been made to the person concerned. Sub-section (1) of Section 11A ibid mandates that in such eventuality, a Central Excise Officer may within one year from the relevant date, serve notice on the person chargeable with the duty amount, requiring him to show cause why he should not pay the amount specified in the notice. However, in case of non-levy, short-levy etc., owing to the reason of fraud, collusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es with the department to prove that the ingredients contained in the proviso to Section 11A are truly justified for invocation of such provision and not otherwise. Thus, considering the overall facts and circumstances of the case, we are of the firm opinion that since there were divergent views expressed between the equal ranking adjudicating authorities in both the cases, the charges of fraud, collusion, willful mis-statement etc. cannot be leveled against the present appellants, justifying invocation of the longer period of limitation, without proper substantiation. 5.4 Further, on careful examination of the documents/records available in the case file, we find that the appellants have amply demonstrated that the conversion activities undertaken by them do not fall within the scope and ambit of the definition of manufacture , provided in Section 2(f) ibid. In this context, it is noticed that the appellants have filed various declarations from time to time and also different correspondences were exchanged between them and the department, conveying the fact of manufacture of Pesticides, Fungicides Sulphur Powder; that the letter dated 04.01.2007 was addressed to the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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