JUDGMENT
Archana Wadhwa
1. The prayer in the application is for dispensation with the pre-condition of deposit of amount of Rs. 7,30,910.00 (rupees seven lac thirty thousand nine hundred ten) towards duty and an equivalent amount of personal penalty imposed upon the first appellant (s) M/s B.O.C. (India) Ltd. under the provisions of Section 11 AC. Penalty of Rs. 1.0 lac (rupees one lac) has been imposed on the said appellant under Rule 173Q. Penalty of Rs. 1.0 lac (rupees one lac) has been imposed on the second appellant, Shri P.R. Chakraborty, Business Manager of M/s BOC (India) Ltd.
2. The short issue involved in the present appeals as to whether after introduction of Chapter Note 10 to Chapter Note 28 w.e.f. 1.3.97, the activity of lebelling or relebelling of containers would amount to manufacture or not. The contention of Shri B.J. Mookherjee, learned Advocate appearing for the appellants is that the activity of lebelling of containers alone will not amount to manufacture in terms of the Chapter Notes and it is only when the goods are being repacked from bulk packs to retail packs and the same are being lebelled, it can be held that excisable product has come into existence in terms of the said Chapter Note. Inasmuch as they were doing only the labelling of already filled cylinders, the same are not covered by the Chapter Note. He also assails the impugned demand on the point of limitation.
3. Shri D.K. Bhowmik, learned JDR appearing for the Revenue submits that in view of the clear language of Chapter Notes ‘and’ has to be read as ‘or’. As such it becomes clear that lebelling or repacking when undertaken separately, will amount to manufacturing activity inasmuch as the appellants are admittedly lebelling the containers filled with helium gas thus converting the same into marketing commodity, they are to pay duty again. As regards the limitation he reiterates the findings of the authorities below.
4. After giving our careful consideration to the submissions made by both sides we find that the issue is contentious and arguable. Suffice it to say at this point that the appellants have not been able to make out a prima facie case on merits as also on limitation. We also note that no financial hardship has been pleaded before us. As such taking into account the overall facts we direct the applicants to deposit an amount of Rs. 5.0 (rupees five lac) within period eight weeks from today. Subject to deposit of the above amount predeposit of the balance amount of duty and penalty stands waived and recovery stayed.
5. Stay petition filed by Shri P.R. Chakraborty is allowed unconditionally. Matter to come up for ascertaining compliance on 25th January, 2002.
(Dictated & pronounced in Court)