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TMI Blog1983 (2) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... d "exempt goods falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) manufactured in a factory as a job work from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the amount charged for the job work." During the material period, the petitioner used to receive pig lead or lead ingots from its customers for conversion into lead suboxide and lead monoxide. After subjecting the said lead to the process mentioned in paragraph 3 of the writ petition filed in C.R. No. 12(w) of 1981, the petitioner returned the finished products to its customers and charged the agreed price for the said process. The petitioner itself did not supply any material for manufacture of lead suboxide and lead monoxide (lithergo) and the petitioner has claimed that in undertaking the aforesaid manufacturing process it performed job work and it was entitled to exemption in terms of the Notification No. 119/75-C.E., dated 30th April, 1975. 3. The respondents have disputed the petitioner's claim for such exemption on the ground that pure lead supplied by the petitioner's customers after undergoing manufacturing pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orker which do not result in the change of identity of the article handed over by the customer for job work. If, in spite of the process undertaken by the job worker, the article does not undergo any change in its character or use, it would not be possible to say that the process in question is a manufacturing process. Only those processes which result in making a new or a distinct article could be termed as manufacturing process. Therefore, the use of expression "that article" in the explanation to the aforesaid Notification No. 119/75-C.E., dated 30th April, 1975 does not contemplate that after job work the same or the identical goods is to be returned in order to qualify for exemption under the said Notification. 5. G.N. Ray, J. in 1980 Excise Law Times had occasion to consider the scope and effect of the aforesaid Notification No. 119/75-C.E., dated 30th April, 1975. The Division Bench consisting of M.M. Dutt and Sharma, JJ. in Collector of Central Excise and another v. Madura Coats Ltd., Serampore 1980 (6) E.L.T. 129, dismissed the appeal preferred by the Collector of Central Excise and affirmed the decision of G.N. Ray, J. in Madura Coats Ltd. v. Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the said Notification No. 119/75-C.E., dated 30th April, 1975. The Division Bench in paragraph 7 of their judgment had pointed out that the expression "job work" in the said Notification means such items of work where the article intended to undergo manufacturing process is supplied to the job worker and that the article is returned by the job worker to the supplier after the article has undergone the intended manufacturing process charging only for the job work done by him. According to the learned Judges, it was obvious in the context of the excise law that unless a new article known to trade emerges after the manufacturing process is completed, excise cannot be levied at all. A job worker is exempted from payment of the excise duty when the article which undergoes manufacturing process is supplied by the customer and the only thing which a job worker has to do is to subject the article supplied by the customer to the intended manufacturing process. The Division Bench in Anup Engineering Co. v. Union of India (supra), had also pointed out that the Deputy Collector, Central Excise, Bombay by a trade notice had clarified, inter-alia, that the exemption under the aforesaid Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise and Salt Act, 1944. 9. The petitioner in paragraph 16 of the Writ Petition filed in C.R. No. 12(w) of 1981 has stated that since August, 1977 up to October, 1980 it had allegedly paid under protest Rs. 1290292.84 P. in excess of the duty payable by the petitioner as per Notification No. 119/75-C.E., dated 30th April, 1975. Particulars of the said payments have been also set out in Annexure `G' to the Writ Petition. The petitioner has prayed in C.R. No. 12(w) of 1981 that the respondents be commanded to refund the same sum of Rs. 1290292.84 P. paid by the petitioner under protest. 10. The respondents in their affidavit-in-opposition disputed the petitioner's right to claim exemption for manufacturing process undertaken by it on the ground that lead suboxide and lead monoxide were different articles from metallic lead handed over by the petitioner's customers. But the respondents in their affidavit-in-opposition did not traverse the petitioner's assertion in paragraph 16 of the writ petition in C.R. No. 12(w) of 1981 that during the aforesaid period the petitioner under protest had paid Rs. 1290292.84 P. in excess of the duty legally payable by the petitioner. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore the Rules ought to be discharged. Mr. Das has also submitted that the petitioner has not explained the delay in moving this court under Article 226 of the Constitution. 13. At an earlier stage the respondents had refunded a certain amount of excise duty paid by the petitioner but thereafter the respondents changed their views about the petitioner's right to get exemption under the aforesaid Notification dated 30th April, 1975 and begin to demand duty under Item No. 68, Schedule I of the Central Excise and Salt Act, 1944 upon lead suboxide and lead monoxide manufactured by the petitioner. The petitioner has claimed that throughout it had been paying excise duty under protest pending disposal of its appeal. Therefore, in fact there was no question of any delay on the part of the petitioner. In the circumstances of the case, it would have been futile for the petitioner to prefer a Revision Application against the appellate order of the Appellate Collector of Central Excise before filing these Writ Applications. The learned Judges who issued these Rules have already exercised their discretion to entertain those writ petitions. Therefore, after the petitioner has establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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