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TMI Blog2025 (3) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... not otherwise require, the remaining Rules 2 to 6 may then be applied in sequential order. Further, while classifying goods, the foremost consideration is the 'statutory definition', if any, provided in the Central Excise Tariff Act. In the absence of any statutory definition, or any guideline provided by the statute, the trade parlance theory is to be adopted for ascertaining as to how the goods are known in the common trade parlance for the purpose of dealing between the parties. It is found that the weight of the product, or the reduction of dimensions from a particular size to another size, is not the pre-requisite for classification of the product under chapter heading 7409. Thickness of the product, being above 0.15mm is the key determinative factor for classification of the product under chapter heading 7409. It is also found process of 'drawing or re-drawing' is not mentioned as a process amounting to manufacture for the product of chapter heading 7409 and such process would amount to manufacture of products only in respect of chapter heading 7411. Hence, the conclusion arrived at by the learned Commissioner does not have any legal basis for classification of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pper rods into copper wires. The appellants were of the understanding that such activity carried out by them does not amount to manufacture and therefore neither took Central Excise registration nor paid the central excise duty. The officers of the Central Excise department visited the appellants' factory on 09.09.2006, and were of the view that those activities undertaken by the appellants amount to manufacture of excisable goods and accordingly, conducted detailed investigation resulting in seizure of raw materials and finished goods under Panchanama proceedings dated 09.09.2006 and 10.09.2006. During the investigation, the department also recovered various documents from the appellants' premises and recorded statements from persons concerned including transporters, alleging clandestine removal of goods by the appellants without payment of central excise duty. On completion of the investigation, show-cause notices dated 08.03.2007 and 27.01.2009 were issued, and adjudication of the same vide Order-in-Original dated 31.08.2009 resulted in confirmation of the demands proposed in the SCNs. In the first round of litigation, the appellants had filed an appeal before the Tribunal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the patta/patti being the above, now what is to be examined is whether the re-drawing of copper flats into patta/patti is a process of manufacture and whether it is necessary that the resultant product must fall under a different heading than under the heading which the raw material falls for the said process to be considered as a process of manufacture. Section 2(f) "manufacture' includes any process,.... 96....If by application of labour and skill an object is transformed to the extent that is commercially known differently, it will suffice to say that manufacture has taken place for the purpose of Central Excise....Further, the Hon'ble Supreme Court in the case of Laminated Packings (P) Ltd. Vs. Collector of C.Ex. - 1990 (49) E.L.T. 326 (S.C.) - had held that if the substance and the resultant product after processing are two distinct commercial commodity, the manufacture can be said to have taken place even if both continue to fall under the same Tariff entry or Heading... 97. ...The copper patta/patti have a different use than the copper flat. Copper flats and copper patta/patti are two different and distinct commodities and it is marketable as such. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Hon'ble Supreme Court in the case of Laminated Packing (supra) in his above conclusion. 7. In order to examine the above issue in dispute, the relevant extracts of the Central Excise Tariff Act, 1985 are given below for ease of reference: Central Excise Tariff Act, 1985 "2. Duties specified in the First Schedule and the Second Schedule to be levied. - The rates at which duties of excise shall be levied under the Central Excise and Salt Act, 1944 (1 of 1944) are specified in the first Schedule and the Second Schedule. xxx xxx xxx General rules for the interpretation of this Schedule Classification of goods in this Schedule shall be governed by the following principles: 1. The titles of Sections, Chapters and Sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions...." On careful perusal of the above provisions of Central Excise Tariff Act, 1985 and General Interpretative Rules (GIR), it clearly transpires that for goods are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been perforated, corrugated, polished or coated, provided that they do not thereby assume the character of articles or products of other headings. xxx xxx xxx 2. In relation to products of heading 7411, the process of drawing or redrawing shall amount to 'manufacture'. Tariff Item Description of goods (1) (2) 7409 COPPER PLATES, SHEETS AND STRIP, OF A THICKNESS EXCEEDING 0.15 MM - Of refined copper : 7409 1100 -- In coils 7409 1900 -- Others - Of copper-zinc base alloys (brass) : 7409 2100 -- In coils 7409 2900 -- Others - Of copper-tin base alloys (bronze) : 7409 3100 -- In coils 7409 3900 -- Others 7409 4000 - Of copper-nickel base alloys (cupro-nickel) or copper-nickel-zinc base alloys (nickel silver) 7409 9000 - Of other copper alloys" From the details of the description of the products provided under chapter heading 7409 of the Central Excise Tariff, we find that copper plates, sheets and strip of a thickness exceeding 0.15mm are classifiable under heading 7409. Chapter note 1(g) of Chapter 74 also describe the scope of coverage of the goods as those flat surfaced copper products of solid recta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellants in respect of machinery, electricity consumption and had not discussed these aspects with any independent evidences to state irrespective of such usage of machinery, electricity consumption the goods have been considered as processed which amounted to bringing into a new product. Therefore, we find that the impugned order does not stand for legal scrutiny. 8.3. We find that the learned Commissioner had relied upon the panchanama proceedings dated 09/10.09.2006 to state that the assessee - appellants were engaged in drawing copper products. Further, he also relied upon the statements of employees of the appellants company viz. Shri Dinesh G. Sanghvi, Manager and Shri Harikesh Doodhnath Ram Watchman to conclude that the appellants were carrying out the process of drawing copper rods and flats. Further, learned Commissioner had also stated that the fact of mentioning of 'copper rod' as finished product in Annexure-B to the Panchnama dated 09/10.09.2009 is an innocuous and apparently inadvertent mistake which does not have any bearing on the merits of the case. On careful examination of the wordings of Panchnama dated 10.09.2006, at page 2 in lines 4 to 7, mentioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement. The said decision of the Hon'ble Delhi High Court has also been relied upon by the Hon'ble Punjab & Haryana High Court, in the case of G-Tech Industries v. Union of India - 2016 (339) E.L.T. 209 (P & H). We find force in the submissions of the Learned Counsel for the appellants that the adjudicating authority has not followed the procedures prescribed under Section 9D of the Act of 1944. We are also in agreement with the appellants that the statements of witnesses cannot be relied upon as Learned Adjudicating authority had not conducted cross-examination. In a similar case of Junaid Kudia Vs. Commissioner of Customs, Mumbai Import-II - (2024) 16 Centax 503 (Tri. - Bom.) wherein reliance was placed on the statements recorded by the departmental officers, for which the adjudicating authority did not give opportunity for cross examination, this Tribunal had held that such statements cannot be taken as admissible evidence and the demand of duty was dropped. The said decision of the Tribunal was also upheld by the Hon'ble Supreme Court in Civil Appeal Diary No. 4161 of 2024, decided on 04.03.2024. 8.5 We also find that in the case of Collector of Central Excise Vs. Technoweld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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