ORDER
S.S. Sekhon, Member (T)
1. These stay applications arise in the appeals against the same impugned order. After hearing both sides, they are being disposed of by this common order.
2. The appellants in E/Stay/1820/02 in appeal E/1989/02 are engaged in the lamination of HDPE fabrics with LDPE on behalf of various customers on job work basis and on job work plus cost of LDPE procured in certain other cases. They have been visited with a duty demand along with penalty consequent to a show cause notice dated 5.1.2001. The other applicants have been imposed penalties. The adjudicator, as it appears, from paragraphs 46 and 46(ii) read by both sides before us, concluded that the activity conducted by the said job worker would amount to ‘manufacture’ under the Central Excise Act, 1944. The Commissioner and the learned DR, in support, rely upon the decision of the apex court in the case of Laminated Packagings (P) Ltd. v. CCE (1991 [49] ELT 326 [SC]). However, the learned consultant for the applicants points out to a finding in paragraph 46(ii) of the impugned order to the effect –
“….. Unlaminated fabrics and laminated fabrics are known differently in common trade parlance…”
to submit that there was no material in the proceedings, or relied upon, to arrive at these findings, which is the test prescribed in paragraph 6 of the Laminated Packagings (P) Ltd. decision of the apex court At this prima facie, stage, the learned DR could not pinpoint such material in the order. Therefore, prima facie, we rely upon the order of the Supreme Court in the case of Meltex (I) Pvt. Ltd. (2004 [165] ELT 129 [SC]) relied upon by the learned consultant, especially paragraphs 10 & 12 thereof which cast an onus on the department to prove ‘manufacture’. Such onus at this prima facie stage is not shown to have been discharged. We would, therefore, grant full waiver of the pre-deposit requirements in all these cases before us and order stay of recovery, pending the regular hearing.
3. Both sides are granted liberty to apply for early hearing, if they seek,
4. The applications are disposed off in the above terms.
(Pronounced in court)