Bombay High Court High Court

The Commissioner Of Central … vs M/S Gtc Industries Ltd on 2 February, 2011

Bombay High Court
The Commissioner Of Central … vs M/S Gtc Industries Ltd on 2 February, 2011
Bench: J.P. Devadhar, Mridula Bhatkar
                                                                 Cexa 139.05
                                    1

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                
                 CENTRAL EXCISE APPEAL NO.139/2005




                                        
     The Commissioner of Central Excise,
     Mumbai-V,
     5th Floor,Utpad Shulk Bhavan,




                                       
     Plot no.C-24, Sector-E,
     Bandra-Kurla Complex, Bandra (E),
     Mumbai-400 051                                        Appellant
            Vs.




                             
     M/s GTC Industries Ltd.,
     Tobacco House,
              
     Vile Parle, Mumbai-400 056                            Respondent
             
     Mr.A.S.Rao a/w Mr.S.D.Bhosale for applellant
     Mr.V.Sridharan a/w Mr.Prakash Shah i/b P.D.S.Legal for
     respondent
      


           CORAM-J.P.DEVADHAR AND
   



                 MRS.MRIDULA BHATKAR ,JJ
           RESERVED ON - 13TH JANUARY,2011.
           PRONOUNCED ON -2nd FEBRUARY,2011.





     J U D G M E N T (Per Mrs.Mridula Bhatkar,J.)

. This appeal was admitted on the following

questions of law.

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1 Whether in the facts and circumstances of the

case and in law, the Tribunal is right in holding

that no classification list is necessary as the

embossing and cutting to shape of Aluminium foil

is not a manufacturing process ?

2 Whether in the facts and circumstances of the case

and in law, the Tribunal is right in holding that the

process of embossing on aluminium paper back

foil and cutting it to shape for the purpose of

packing of the cigarettes does not amount to

manufacture ?

2 This appeal is filed by the Commissioner of

Central Excise, Mumbai-V challenging the order dated

19/4/2005 passed by the CESTAT. The respondent (‘assessee’

for short) is the manufacturer of cigarettes and falling under

CH.S.H.2403.11 scheduled to CETA 1985. The assessee used

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duty paid paper back aluminium foil in the roll form for the

purpose of packing cigarettes. In the process the cigarette roll

is cut to size and got embossed with word ‘PULL’ and is

wrapped in the cigarette.

3 As per notification dated 13/5/1988 the duty paid

aluminium foil when cut and embossed,the resultant product

was exempted from payment of excise duty. However, the

government withdrew the said notification by a notification

no.44/94 dated 1/3/1994 . Thereupon, the respondent filed

Classification List 9/94 /Aluminium foil dated 26/4/1994,

under protest classifying the products as aluminium foil cut to

shape under tariff 7607.30 and aluminium foil embossed

under CSH 7607.20. During the pendencyof the approval of

the classification list the assessee paid excise duty on cut to

shape/embossed aluminium foil @ 20%as per tariff heading

7607.30 and 7607.20. The Assistant Commissioner vide order

dated 1/7/1994 held that the aluminium foil cut to

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shape/embossed which is used for packing cigarettes does not

amount of manufacture and accordingly returned the

classification list submitted by the assessee. Being aggrieved

by order dated 1/7/1994 the appellant preferred an appeal

before the Commissioner of Central Excise (Appeals) who

dismissed the said appeal by order dated 9/3/1999. Being

aggrieved by the said order of the Commissioner of Central

Excise the appellant filed appeal before the CESTAT and the

said appeal was also dismissed by order dated 19/5/2005 by

the CESTAT. Hence the appellant has filed this appeal under

section 35(G) of the Act .

4 Learned counsel Mr.Rao appearing for the

appellant made two fold submissions. He argued that the

process of embossing itself is manufacturing and the product

that emerges on embossing is a new product. Secondly

aluminium foil brought in bulk by the assessee on payment of

excise duty is also subjected to the process of cutting it into

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small pieces which changes the form and nature of the foil and

hence the said process amounts to manufacturing.

Accordingly counsel for the revenue submitted that the order

passed by the CESTAT is liable to be set aside.

5 Mr.Sridharan,learned counsel appearing for the

assessee in reply submitted that the assessee purchases a roll

of aluminium foil with backing of white paper and the roll is

cut in pieces and on one side of each piece word ‘PULL’ is

embossed in which the cigarettes are filled in with the help of

machine and Aluminium paper back foil holding cigarettes is

directly placed in cigarette packing machine . The cigarettes

are filled in aluminium foil in such a way that word ‘PULL’

comes on the upper side of the packet. The learned counsel

submitted that the aluminium foil backed with a white paper

purchased by the assessee is itself a excisable commodity.

When the paper foil is cut to the size it does not change its

nature and form and embossing word ‘PULL’ also does not

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add any different character or value to the said aluminium foil

therefore , aluminium foil used in the cigarettes packet is not

dutiable commodity. He further submitted that a foil is a

barrier for moisture and so it is used to protect the cigarettes

from moisture.

6 The learned counsel in support of his submissions

relied on the judgment of the Apex Court in Commissioner of

Central Excise New Delhi Vs.S.R.Tissues Pvt.Ltd.2005(186)

E.L.T.385 (S.C.). However, the learned counsel for the

appellant Department controverted and submitted that the ratio

of the Apex Court in respect of aluminium foil is not

applicable to the present set of facts. In that case the tissue

paper was cut and slit into various shapes and sizes

from a jumbo roll of tissue paper. In the present case the

aluminium foil and paper backing is not only cut to pieces but

the word ‘PULL’ is also embossed on it and further the said

piece of aluminium foil is used as a shell for cigarettes . Thus,

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its nature , form and purpose is changed and therefore, the said

ruling is distinguishable .

7 Use of aluminium foil which is cut to the size and

embossed is in a continuous process of packing the cigarettes

in the packets. Manufacturing as defined in section 2(f) of the

Central Excise and Salt Act, 1944 includes any process

enumerated therein. However, all the processes would not

amount to manufacturing under the Act. Process is not defined

under the Act . So it is understood in a common parlance. The

process may be a flow , progress , movement,

transformation,change continuation,a link , an action ,

happening,etc.. Any process which produces distinct and

identifiable commodity and renders marketable value the can

be called manufacture.A commodity whether manufactured or

not necessarily depends on the context and the factors of the

production/process of that commodity.

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8 In the present case a roll of aluminium foil backed

with white thin paper is purchased by the respondent for the

purpose of packing their product i.e.cigarettes . In the roll

there is a continuous foil, therefore, it is cut to the size as per

requirement of the capacity of the packet in which the

cigarettes are to be packed. Thus, the cuts are given

horizontally and separate pieces of the foil are made. As soon

as the separate piece of the foil is made , a word ‘PULL’ is

embossed on it. Thereafter fixed number of 10 or 20 cigarettes

are wrapped in the foil and the said wrapped cigarettes are

inserted in the cigarettes packet. An aluminium foil being a

resistant to moisture is used as a protector for the cigarettes

and to keep them dry. The word ‘PULL’ is embossed with a

view to make it convenient for the user and to know from

which side a cigarette can be taken out. Thus, it shows that

cutting and embossing do not transform aluminium foil into a

distinct and identifiable commodity. That does not change the

nature and substance of the aluminium foil. It does not render

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any marketable value to that piece of paper. Cutting to the size

and embossing is only for making it usable for the purpose of

packing.

9 In Mafatlal Industries Limited Vs.Nadiad Nagar

Palika,2000(117) ELT 290 the Apex Court has observed that

cutting of 100 mtrs.cloth into small pieces does not bring any

different commercial commodity.

In Collector of Central Excise Vs.Technoweld

Industries,2003 (155) ELT 2009 (S.C.)the Supreme Court has

dealt with the issue that drawing wires from wire rods is

manufacture or not and it is held that both the products being

wires are not considered excisable merely because they are

covered by two separate entries in the tariff.

In Parle Products Pvt.Ltd. Vs.Union of India , 1991

(56) E.L.T.52(Bom.) the Division Bench of this Court has

delt with a issue of use of aluminium foil with printed paper

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for packing whether amounts to manufacturing. In the said

case the Division Bench of this Court held that the

Department was clearly in error in recovering the duty from

the company. Backing of aluminium foil with printed paper

only to make it more attractive for packing and not resulting in

any distinct and different articles does not amount to

manufacture .

10 The present case in fact is covered by the ratio

Court in Commissioner of Central Excise New Delhi I

Vs.S.R.Tissues Pvt.Ltd.2005(186) E.L.T.(S.C.)in which the

Apex Court has observed that slitting/cutting of jumbo rolls of

plain tissue paper/aluminium foil is not treated as a

manufacture. Hence section 2(f) of the Act is not applicable.

In the said case jumbo rolls of toilet tissue papers or a

aluminium foils were cut in various shapes and sizes.

However, it was held that mere mention of the product in tariff

heading does not necessarily implies that the said product was

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obtained by process of manufacture. The submissions of

Mr.Rao that the present case is distinguishable from this case

(S.R.Tissues) is not correct and cannot be accepted. There is

nothing on record to suggest that the cut to shape/embossed

aluminium foils used for packing cigarettes is a distinct

marketable commodity . Neither the appellant nor any one

else is said to have been marketing cut to shape/embossed

aluminium foils.

11 Hence the view taken by the Asstt.Collector of Central

Excise as also the CESTAT that embossing on foil and cutting

to shape and size during the process of packing of cigarettes

cannot be faulted. Aluminium foil is cut to size in a

continuous process and it does emerge as a new commodity

and hence it is not excisable.

12 In these circumstances, the questions raised by the

revenue are answered in the affirmative, that is, in favour of

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the assessee and against the revenue.

The appeal is disposed of with no order as to costs.

(MRS.MRIDULA BHATKAR,J.) (J.P.DEVADHAR,J.)

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