ORDER
G.R. Sharma
1. Revenue has filed this appeal against the order of the Ld. Commissioner, who held as under:
“I order confiscation of seized 74 cartons intercepted in transit containing Aluminium Home Foils valued at Rs.87,433.44 under Rule 9(2), 173Q and 226 of the Central excise Rules, 1944. The party is however given an option to redeem the same on payment of redemption fine of Rs.22,000/-. As the goods are dutiable these are ordered to be removed on payment of appropriate duty of excise. The option of redemption should be exercised within 90 days of receipt of this order.
ii) I order confiscation of goods seized from office premises valued at Rs.90,267.24 under Rule 9(2), 173Q and 226 of the Central Excise Rules,44. However, I give an option to the party to redeem the same on payment of redumption fine of Rs.23,000/-. As the goods are dutiable these are ordered to be removed on payment of appropriate duty of excise. The option of redemption should be exercised within 90 days of receipt of this order.
iii) I order confiscation of goods seized from factory premises valued at Rs.23,41,201/- under Rule 173Q and 226 of the Central Excise Rules, 1944. However, I give an option to the party to redeem the same on payment of redemption fine of Rs.5,85,000/-. As the goods are dutiable these are ordered to be removed on payment of appropriate duty of excise. The option of redemption should be exercised within 90 days of receipt of the order.
iv) I confirm and demand the Central Excise duty of Rs.96,19,320.25 involved on the clearance/removal of excisable goods during the period 1.4.94 to 31.3.99 under Rule 9(2) of the Central Excise Rules,44 read with proviso to Section 11A)1) of the Central Excise Act, 44 by invoking the extended period of five years.
v) I impose a penalty of Rs.96,19,320 upon the party under Rule 9(2), 173Q and 226 of the Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 44.
vi) I also order to charge interest at appropriate rate on the leviable Central Excise Duty under Section 11AB of the Central Excise Act,44.
vii) I also impose a penalty of Rs.2,00,000/- on Shri Rakesh Gupta, Director of the party under Rule 209A of the Central excise Rules,1944.”
2. We have heard Shri P.K. Jain, Ld. SDR for Revenue and Shri M.P. Devnath, Ld. Counsel for the respondent.
3. We have also perused the case law on the issue. We note that the same issue had come up before the Tribunal and the Tribunal by its Final Order No.268-270/2001-B held that cutting jumbo rolls of aluminium foil into smaller lengths followed by rewinding on card board core and repacking did not amount to manufacture under Section 2(f) of the Central Excise Act, in the absence of Section/Chapter Notes defining such cutting/rewinding/repacking activity as amounting to manufacture. This Tribunal further held that the aluminium home foils cleared by M/s. S.R. Foils during the material period and those which were seized from their factory/office premises and eventually confiscated by the Commissioner were not excisable goods and hence there was no question of demanding any duty of excise on those goods. Following the ratio we hold that the confiscation of seized 74 cartons, goods seized from the office premises and goods seized from the factory premises is not sustainable in law. We also find that duty demanded on aluminium foils of the smaller length is not sustainable in-as-much as we have held that cutting of jumbo roll of aluminium foils into smaller length does not amount to manufacture under Section 2(f) of the Central excise Act. Since demand of duty is not sustainable in law, therefore, imposition of penalty and charging of interest also is invalid on the company as also on Shri Rakesh Gupta, Director of the Company.
4. In so far as chapati wrap is concerned, we note that the issue is covered by the decision of the Larger Bench in the case of Shri Chakra Tyres reported in RLT (LB) -1262,
5. In view of the above findings, there is no merit in the appeal of Revenue. The same is, therefore, dismissed.