ORDER
S.S. Sekhon, Member (T)
1.1 Assessee is manufacturer of excisable goods. They also process certain duty paid dyes falling under heading 3204.00 brought by, by mixing with water in a high speed stirrer thoroughly, addition of preservatives & after cooling, filter and pack them & sell the same as photo colours. As also Cryling medium was obtained by diluting duty paid Aerylin Emulsion.
1.2 Earlier to the introduction of Central Excise Tariff Act 1985 & thereafter, vide a series of orders the Asst. Collector, Dy. prior to 1986 & subsequent thereto, vide these orders, did not amount to manufacture to attract Central Excise levy.
1.3 One jurisdictional officer, however concluded otherwise. In appeal CCE (A), after finding that the products have specific characteristics & uses & the appellants having failed to establish that no manufacture took place & relying upon chapter note 7 of chapter 32 & TN dtd 14/7/1988 held the products to be exigible & dutiable. Hence this appeal.
2.1 After considering that the products before the CCE (A) and the earlier authorities were same as vide earlier orders no K-I/Addl/128/2001 dtd 30/05/2001 by Additional Commissioner where the products have been held to be not dutiable and process not amounting to manufacture. Therefore reliance placed by the Ld. Advocate on the apex court decision in case of CCE v. Suntrack Electronic (P) Ltd is well founded. We find it was not permissible to the original authority to have departed from the settled position & to have caused & called for CCE (A) application of mind, especially when no change, in law & or, process used or raw material consumed or end use has taken place.
2.2 We find that the issue of dilution of standardized dyes as in this case & or preparation of printing paste and the levy of Central Excise Duty thereon has been the subject of decision of Bombay High Court & in other forum, it has led to issue of Section 37B orders under the Central Excise Act 1944. considering the same, especially the latest decision of the Bombay High Court. In the case of Phoenix Mills Ltd (2004 (168) ELT 310 Bombay) & the subsequent Trade Notices & Section 37B orders dtd 2193 and the fact that it was for the department to prove ‘manufacture’ and not for the assessee to prove the negative, no merits are found to uphold the impugned order, when no contrary judgment is shown/relied.
3.1 In view of the above findings, the appeal is allowed after setting aside the order.