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Customs, Excise and Gold Tribunal – Mumbai
Commissioner Of C. Ex. And Cus. vs S.B. Reshellers Pvt. Ltd. on 25 October, 2000
Equivalent citations: 2001 (73) ECC 186, 2001 (127) ELT 699 Tri Mumbai


ORDER

G.N. Srinivasan, Member (J)

1. This is an appeal filed by the department against the decision of the Commissioner of Central Excise and Customs Pune, made in Order-in-Original No. 75/CEX/93 dated 15-12-1993 whereunder he has held that process of Reshells of Rollers in respect of Sugar Mills does not amount to manufacture following the Circular of the Board contained in Circular No. 3/86/CEX dated 14-2-1986.

2. The respondent are engaged in carrying on the business of manufacture of the Sugar Mills rollers and seller shells. The question involved in this appeal is whether such an activity comes within the ambit of the term manufacture in terms of the provisions of Section 2(f) of the Central Excise Act, 1944.

3. Show cause notice dated 24-12-1993 was issued by the Jurisdictional authorities against the respondents proposing to levy duty on such activity. The adjudicating authority by the impugned order, after elaborately discussing various notifications as well as the Board Circular has held that the activity undertaken by the Respondent would not amount to manufacture. The adjudicating authority followed the instructions contained in Board in Circular No. 3/86-CEX, dated 14-2-1986, in view thereof the proceedings were dropped. Shri B.B. Sarkar ld. DR would reiterate what is contained review order of the Board seeking to review order and also states that what is mentioned was also about the classifications of the shells under Chapter sub-heading 7325.10 and it does not specifically referred to re-shelling process as manufacture.

4. We have considered what is contained in the reviewer order in the revenue order, the activity is sought to be made as manufactured. The impugned order specifically follows the Board-Circular referred to above. When there is existence of Board Circular is that it is binding on the sub-ordinate officials the department cannot take a contrary stand to what is contained in the Board Circular. More so without superceding the Board’s circular in specific terms. We are therefore of the view that the impugned order cannot be faulted. Infact in the Judgment in the case of Saraswati Industrial Syndicate Ltd. v. Union of India 1985 (20) E.L.T. 251 (P & H) at Paragraph 9 thereof has held that even if it be accepted that the shell which is ultimately mounted on the shaft is manufactured by the respondents, even then this process will not suffer any excise duty. The court further held in that case that the shell was only an intermediate product. The Customer does not place order for the manufacture of a shell. The shell is not sold separately in the market. In view of the above specific finding of the Punjab and Haryana High Court, which is binding on us, the review order by the Board cannot be accepted as legal. There is no material produced in the review order regarding the commercial marketability of the shell. It questions separately as identifiable product, without a basis and also there is no material available as to why the benefit of exemption under Notification No. 275/88-C.E. cannot be granted to these cascading (shells) as per Board Circular No. 225/59/96-CX., dated 1-7-1996. Hence we reject the appeal of the department and dismiss the same upholding the impugned order.


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