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TMI Blog2022 (12) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of affixing labels detailing source and handling instruction. There is, thus, packing and labelling and it was to be determined if these conform to the prescriptive threshold envisaged by the impugned note that is composed of four process with each of them standing on their own for manufacture to be deemed. We fail to see any finding that, with reference to the facts, narrows the impugned activity to one of the four alternatives. It is regrettable that adjudication is, at times, perceived as response to resistance put up by noticee instead of as a responsible exercise of determining, from established fact, either breach of statutory boundaries or inapplicability of context for escapement. That deficit must be made good before appellate determination can commence. The determination of breach as far as the liquid bromine seized from the manufacturing entity is concerned has been influenced by the finding of the adjudicating Commissioner and the taint therein infects the outcome before the first appellate authority in the second set of appeals requiring fresh determination. The tax liability has been fastened by resort to assumptions driven by absence of satisfactory expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Family (HUF), owning the latter and designated director in the former. 3. Levy of duties from deeming as manufacture, through insertion of note in chapter 28, 29, 34, 35 and 38 of the Schedule to Central Excise Tariff Act, 1985, by Finance Act, 1997 ushered in the impugned legal fiction that is the cause of the present controversy for the period from August 2007 to October 2008. In the factual matrix, M/s Mody Chemical Industries imported liquid bromine in ISO tanks of 15000 kg capacity from Louisiana, USA which M/s Mody Chem Pharma Pvt Ltd, authorized to handle such hazardous substance and with capacity for bottling, supplies back in crates of six 3 kg bottles ; an intermediate collection in flask of 50 kg capacity before the final stage is the crux of the dispute. The case of central excise authorities is that note 9 in chapter 28 of Schedule to Central Excise Tariff Act, 1985 suffices for such re-bottling to be manufacture within the ambit of excisability. The appellant-company manufactures several chemicals for use in downstream industry and about 2 to 3 metric tons of liquid bromine procured domestically is consumed every month by them for producing 1.3 dibromo 5.5 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under rule 25 of Central Excise Rules, 2002 with attendant penalties under rule 26 and rule 27 of Central Excise Rules, 2002 was adjudicated. The upholding of confiscation with option to redeem on payment of fine of ₹ 3,00,000 and imposition of penalty of ₹ 2,88,140 in order-in-appeal no. BC/37-39/MUM-III/2012-13 dated 30th April 2012 is the second set of appeals impugned before us. 6. Learned Counsel for the appellant submits that the scope of the then newly inserted notes in the respective chapters was clarified by Central Board of Excise Customs (CBEC) in circular no. 342/58/97-CX dated 8th October 1997 as requiring interpretation on the facts of each activity as had been done, all along, in like inclusions elsewhere in the Schedule to the Central Excise Tariff Act, 1985. Attention was also drawn by her to circular no. 910/30/2009-CX dated 16th December 2009 of Central Board of Excise Customs (CBEC), consequent upon the amendment to the newly inserted notes by substituting and by or to align with the intendment of distinction among the sets of activities and, notwithstanding which, it was reiterated that the activity of re-packing would need to be ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Jaipur I [2011 (271) ELT 321 (SC)] and of the Tribunal in Mittal Pigments Pvt Ltd v. Commissioner of Central Excise, Jaipur-I [2013 (30) STR 193 (Tri.-Del.)] as well as in Nestle India Ltd v. Commissioner of Central Excise, Chandigarh II [2011 (270 ELT 575 (Tri.Del.)]. Further reliance was placed in the decision of the Tribunal in Collector of Central Excise, Jaipur v. Mittal Laminates (P) Ltd [1999 (105) ELT 408 (Tribunal)] and it was also contended that the decision of the Hon ble Supreme Court in Shri Vivekanand Mills Ltd v. Union of India [1999 (109) ELT 32 (SC)] had placed onus on the assessee for ensuring compliance with the tax law. 11. The decision of the Hon ble Supreme Court in re Sundstrand Forms P Ltd placed emphasis on marketability owing to its relevance in invoking rule 2A of the General rules for the interpretation of Schedule to Central Excise Tariff Act, 1985 which does not really pertain to the present dispute on interpretation of specified activities that are deemed to amount to manufacture for application of section 3 of Central Excise Act, 1994. The decision of the Hon ble Supreme Court in re Air Lidquide North India Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. Being a hazardous substance, there is legal requirement of affixing labels detailing source and handling instruction. There is, thus, packing and labelling and it was to be determined if these conform to the prescriptive threshold envisaged by the impugned note that is composed of four process with each of them standing on their own for manufacture to be deemed. We fail to see any finding that, with reference to the facts, narrows the impugned activity to one of the four alternatives. It is regrettable that adjudication is, at times, perceived as response to resistance put up by noticee instead of as a responsible exercise of determining, from established fact, either breach of statutory boundaries or inapplicability of context for escapement. That deficit must be made good before appellate determination can commence. 14. The determination of breach as far as the liquid bromine seized from the manufacturing entity is concerned has been influenced by the finding of the adjudicating Commissioner and the taint therein infects the outcome before the first appellate authority in the second set of appeals requiring fresh determination. 15. The findings in the order of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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