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TMI Blog2023 (8) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... eighing more than 150mg/m2 and no reason has been adduced by appellant-assessee to suggest that this is not a description of the impugned goods or that a more accurate heading exists. Neither is there a suggestion that it is only adhesive that coats the base paper supplied by appellant to M/s Shri Shankar Vijay Saw Mills. Indeed, the primary claim of the appellant is that the laminate lacks the shelf-life for marketability and hence is not excisable. However, it is on record that the product in question is stored, even if in controlled condition, and is also sent to M/s Pragati Plywood India Pvt Ltd for affixing the laminate on the board. The length of shelf-life is not relevant in these circumstances. The impugned goods are marketable and, hence, excisable. On record are intimations of movement for job work dated 9th April 2003 as prescribed in notification no. 214/86-CE dated 25th March 1986. All the materials are supplied by appellant to the jobworker. The appellant is, thus, the principal manufacturer and they have assumed the liability to pay duty - The claim that the job-worker is liable does not hold. The appellant is no stranger to disputes on leviability of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings in several notices for demand of duties of central excise on intermediate goods that had been cleared by them from 2003-04 to 2009-10 and in 2008-09 till September 2008 and for the periods thereafter covered by regular notices. Plain boards manufactured by the appellant were sent to M/s Pragati Plywood India Pvt Ltd for lamination with paper impregnated with chemicals by a short cycle of hot pressing. The lamination paper was prepared by M/s Shri Shankar Vijay Saw Mills from paper and chemicals supplied by the appellant; a solution obtained by heating melamine resin and formaldehyde in a kettle was, after cooling, added with some other chemicals for application on the base paper and the finished product stored at temperature between 190and 220 C owing to limited shelf-life. 2. It was alleged that the chemical treatment on paper at the facility of M/s Shri Vijay Shankar Saw Mills is manufacture of excisable goods, conforming to description corresponding to tariff item 4811 5900 of Schedule to Central Excise Tariff Act, 1985 and not entitled to exemption, otherwise available to intermediate goods used captively for manufacture of final products in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86780/2019] before us. Commissioner of Central Goods Services Tax, Kolhapur is also before us in appeals [appeal no. E/85817 and 85818/2014 and E/85816/2017] challenging orders of the first appellate authority for having taken up appeals for decision even in the absence of pre-deposit as well as setting aside of penalties imposed under rule 25 of Central Excise Rules, 2002. All of these appeals are taken up for disposal together. 4. The intermediate goods were, in line with the decision of the Hon ble Supreme Court in Dunlop India Ltd v. Union of India [1983 (123) ELT 1566 (SC)] prescribing tests for being subject to duties, considered as excisable. The marketability test was decided on similitude with goods imported by M/s Decorative Laminates (India) Pvt Ltd and availability elsewhere in the world through search in world wide web. The appellant, in the business of manufacturing particle boards , undertook further activity through job workers exclusively contracted with them, viz., M/s Shri Shankar Vijay Saw Mills and M/s Pragati Plywood Industries Ltd and it is thus that duty liability came to be fastened on them as principal manufacturer. The value, arrived at by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1], the Hon ble Supreme Court placed emphasis on goods being marketed which found elaboration in South Bihar Sugar Mills Ltd Anr v. Union of India Anr [AIR 1968 SC 922] and its relevance continued into the age of the comprehensive tariff even as that welcome substitute for the residual entry, in the form of tariff item 68 , assured felicity of amenability to near certain fitment. Several of these decisions even resolved the controversy in the reliance placed by Revenue on the specificity of entries in the pre-1985 tariff as sufficient to determine excisability and we cannot but take notice that the proposed classification in the impugned proceedings too claims affinity with a residual entry though, undeniably, that the name of the intermediate product appears to have its provenance in paper and paper board, coated, impregnated or covered with plastics (excluding adhesive) corresponding to tariff item 4811 5900 of Schedule to Central Excise Tariff Act, 1985 to which we may have to return should the impugned goods pass muster for excisability. 7. Suffice it to say, for the nonce and merely as an example, that, in Bata India Ltd v. Commissioner of Central Excise, New De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belied by the statements of the production head and that even limited shelf life sufficed for levy of duty as held by the Tribunal in Garware Marine Industries Ltd v. Commissioner of Central Excise, Aurangabad [2012 (279) ELT 152 (Tri)]. It was further submitted by him that ownership and control of the materials, and deployment thereof, remained with the appellant besides which an undertaking had been furnished, in terms of notification 214/86-CE dated 25th March 1986, by the appellant to Kolhapur Central Excise; consequently, duty liability devolved on the M/s Vilsons Particle Board Industries Ltd. Reliance was placed by him on the decision of the Tribunal in Desh Rolling Mills v. Commissioner of Central Excise, Delhi [2000 (122) ELT 481(Tri)]. 11. Pre-laminated boards are a convenience to customers substituting for buying board and laminate separately and labouring over the fusing of the two. The shelf life of a store-bought laminate needs necessarily to be more than that intended for consumption in the factory. The threshold of excisability is enumeration in the Schedule to Central Excise Tariff Act, 1985. The description corresponding to tariff item 4811 5900 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are marketable and, hence, excisable. 12. On record are intimations of movement for job work dated 9th April 2003 as prescribed in notification no. 214/86-CE dated 25th March 1986. All the materials are supplied by appellant to the jobworker. The appellant is, thus, the principal manufacturer and they have assumed the liability to pay duty. The claim that the job-worker is liable does not hold. 13. The appellant is no stranger to disputes on leviability of duty on pre-laminated boards. In Darshan Boardlam Ltd and another v. Union of India [2013 (287) ELT 401 (Guj)], the Hon ble High Court of Gujarat took note of the dropping of proceedings in adjudication thus 55. Mr. Dave also contended that under Section 35E(1) of the Central Excise Act, the Board has power to review orders passed by any Commissioner of Central Excise as an adjudicating authority. But the adjudication orders passed by Commissioner of Central Excise, Pune and that by the Commissioner of Central Excise, Lucknow are not reviewed by the Board nor by the concerned committees of Chief Commissioners. As is recorded in the said orders of Commissioner, Pune and also in the order of Joint Commissioner, Kolhapur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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