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TMI Blog2005 (5) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ce they have been arrived without application of mind. We find that all 'manufacture' cannot be judged with reference to Section 2(f) of the Central Excise Act, 1944. Infact the board vide its orders/circulars has held and ordered the field staff, that a broader view is called for in respect of the interpretation of the provisions of Notification 1/95-C.E. and the exemption may not be restricted only to cases where 'manufacture' u/s 2(f) of Central Excise Act is involved . This view of interpretation has been adopted by the Tribunal in a Catena of decisions. The appellants had raised this ground and the permissions specially granted by the Development Commissioner, we cannot ignore the same, as nothing contrary shown. We would therefore find no reason to conclude that the imports were not to be subjected to or are not subjected to manufacture and are thus imports of Complete Consumer Goods, not permissible to be imported. The process (A) and (B) and (C) (supra) would be covered under the concept of manufacture, as there is no finding that the goods were marketable de hor that all or any one of these process; the bland allegations of deodorant cans to be finished goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are imported in bulk quantity in the form of filled bottles/godets/tubes/containers etc. and the various packing materials like caps, individual cartons, liners, labels, etc. are separately imported. Other packing materials like inner cartons, outer cartons, gum tape rolls, strapping materials etc. are procured from intra-zone units and BOPP films and some labels are procured from indigenous suppliers. (ii) The imported materials are tested and checked with the matter samples maintained at the factory and their conformation to strict quality requirements is ensured. (iii) Individual cartons and liners are folded and kept ready for packing of the required products. (iv) The bottles are spray tested on the conveyor and defective items are rejected. (v) The products are then inserted in individual cartons which are subsequently labelled. (vi) After the various products are put in their respective individual cartons and the individual cartons are labelled, the activity of cellophaning of individual cartons is carried out. The BOPP films used for cellophaning are cut to specific sizes and cellophaning is carried out either manually or with the cellophaning machine. (vii) The cellophanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le requiring no further manufacturing/processing. The permission dtd. 18-12-84 of Ministry of Commerce and 12-10-99 of Development Commissioner permit imports of Cosmetics Toiletteries in bulk and require the appellants to re-assessable, retest and repack in assorted size subject to no objection from KAFTZ. Customs and no such no objection was obtained, therefore benefit of notification 133/94-Cus. claimed without indicating the serial number was not available. (ii) In respect of BE No. 1771, dtd. 30-12-99, it was alleged that deodorants cans 6912 pieces, were in retail packing and being finished products were not covered under notification 133/94-Cus. (iii) since the nine consignments were, import of finished goods, in retail pack/consumer pack and not in bulk as permitted; no further processing/manufacture was required the goods were of a kind ready to be sold in retail, they did not figure in the list of items eligible for exemption under notification 133/94. (iv) imports were in violation of the permission granted by the Ministry and the Development Commissioner and were liable to confiscation under Section 111(d) of the Customs Act, 1962. (v) There was an attempt towards evasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/94 was still available and enhanced demand was not called for. (iii) The coverage under MTP Act was not called for. (iv) Proposed confiscation under Section 111(a) was not called for since Kandla Port was notified and approve Port vide Entry No. 5(9) to notification 62/94-Cus. (N.T), dtd. 21-11-94. 1.6 In another reply dtd. 4-7-2000, by the appellants, it was brought on record and submitted - (i) by two letters dtd. 9-6-2000, the raw material used and the process employed was accepted to be manufactured by KAFTZ authorities. (ii) violation of Circular No 21/95, dtd. March 10, 95 of Board has taken place inasmuch as no objection of Development Commissioner Kandla has been obtained before the initiating the proceedings. 1.7 The Commissioner however found - (i) The noticee have established a unit in Kandla Free Trade Zone (now known as Kandla Special Economic Zone) for manufacture and export of cosmetics and toilet preparations. The noticee were initially approved for carrying out the manufacturing operations by importing the cosmetics and perfumes in bulk and not in finished form in consumer packs and subsequently carrying out various operations including the filling of consumer pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944. (vi) The noticee has contented that Circular No. 32/97-Cus., dtd. 1-9-97 issued by the CBEC lays down the scope and ambit of exercise of powers of the Customs authorities and emphasises that the Assistant Commissioner/Dy. Commissioner posed in the Zone is on deputation to the Zone and should work under the overall supervision of the Development Commissioner. The above contention of the noticee is not based on correct appreciation of the circular 32/97-Cus., dtd. 1-9-97. On perusal of the circular, I find that it stipulate that the Commissioner of Customs would exercise powers in respect of certain areas including adjudication proceedings. The issue of show cause notice and subsequent proceedings form part of the adjudication proceedings and hence the contention of the noticee is not accepted. (vii) The addendum to the show cause notice issued on 22-2-2000 is part of the show cause notice. The noticee has not challenged that this addendum is illegal and had been issued beyond the competency. Since the addendum has been issued within the stipulated time limit and as per law, it forms part of the SCN and the contention of the noticee in this regard cannot be accepted. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods imposed may be used for the purpose of processing for export out of India. 1.9 Hence this appeal. 2.1 After hearing both sides and considering the material, the findings it is found - (i) The Commissioners finding arrived for confiscation of the subject goods under Section 111(a) of the Act, ignore the notification issued, whereby Kandla was an appointed port for the purpose of clause (a) of Section 7 of the Customs Act, for the purpose of unloading of imported goods or any class of such goods, vide notification issued under the Customs Act, 1962. The provisions of Rule 43A of the Drugs and Cosmetics Rules, 1945 being applied to the imports made herein cannot be and derogate the provisions of Section 7(a) of the Customs Act, 1962 and the notification allowing 'unloading of any class of imported goods' as per the Customs Act, 1962. The confiscation arrived at under Sections 111(d) and 111(a) for these four consignments as impugned vide proposal in the corrigendum dtd. 17-1-2000 was only to be under 111(a) as recorded in Para 10(ii) of the order impugned before us. Therefore confiscation order as arrived cannot be upheld as the order has not only proceeded beyond the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Policy and or the levy applicable in such cases on to production in KAFTZ shall not be debarred to the appellants. (d) We find that all 'manufacture' cannot be judged with reference to Section 2(f) of the Central Excise Act, 1944. Infact the board vide its orders/circulars has held and ordered the field staff, that a broader view is called for in respect of the interpretation of the provisions of Notification 1/95-C.E. and the exemption may not be restricted only to cases where 'manufacture' under Section 2(f) of Central Excise Act is involved (see Para 5 of circular of C.B.E. C. Circular No. 314/30/97-C dtd. 6-5-97). This view of interpretation has been adopted by the Tribunal in a Catena of decisions (see Super Cassettes Industry - 1998 (104) E.L.T. 115. The appellants had raised this ground and the permissions specially granted by the Development Commissioner, we cannot ignore the same, as nothing contrary shown. We would therefore find no reason to conclude that the imports were not to be subjected to or are not subjected to manufacture and are thus imports of Complete Consumer Goods, not permissible to be imported. The process (A) and (B) and (C) (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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