ORDER
C.N.B. Nair, Member (T)
1. Heard both sides and perused record.
2. The appellant receives imported RBD Palmolein in containers. The palmolein so received is packed into 1 kg. Packs. Duty demands has been made in the impugned order on the ground that such packing amount to manufacture in view of the chapter note 4 to chapter 15. That note reads as under: –
“4. In relation to the products of sub-heading Nos. 1502.00, 11503.00, 1504.00 and 15.08.1990, labeling or relabelling of Container and repacking from bulk packs to retails packs or the adoption of any other treatment to render the products marketable to the consumer, shall amount to “manufacture”.
3. The submission of learned Counsel for the appellant is that the scope of the above chapter note was the subject matter of consideration by this Tribunal in the case of Ammonia Supply Company v. Commissioner of C. Ex. New Delhi – and the Tribunal held that packing from containers into smaller packs would not come within the meaning of the note. This order was followed in the case of Ram Kishore Chemical Co. Pvt. Ltd., v. CCE, New Delhi – 2002 (145) ELT 106.
4. Learned SDR points out that he issue of manufacture was not raised before the lower authorities. Nor was that relied upon in the show cause notice. It is therefore, being contended that the benefit of the earlier decision of the Tribunal in the aforesaid cases is not available to the Present appellant. Reliance is also being placed on the judgment of the Aped Court in the case of Impression Prints v. CCE, Delhi-I in support of the contention that a point which not raised before the lower authorities cannot be raised in appeal proceedings. To this, the submission of the learned Counsel of the appellant is that a question of law can be raised at any stage in the proceedings.
5. We find that the issue raised by the appellant, that no duty is payable on the activity carried out by the appellant, remains covered in favour of the appellant by our previous order. Revenue resists granting of stay on the ground that this point was not taken before the original authority and for that reason cannot be taken before the Tribunal. This submission is being made based on the observations of the Hon’ble Supreme Court in Para 22 of its judgment in the case of Impression Prints v. CCE, Delhi-I . That Para reads as under:
“22. Mr. Bagaria next submitted that penalty has been levied under Section 11AC of the Central Excise Act. He submitted that this Section was introduced only with effect from 28th September 1996. He relied upon the case of Commissioner of Central Excise, Coimbatore v. Elgi Equipments Ltd., reported in 2001 (9) SCC 60 and submitted that it has been held that this Section only Operates prospectively and not retrospectively. He submitted that thus penalty could not have been imposed. We find that no such point had been raised before the Tribunal and no such point is raised even in the Memorandum of Appeal before this Court. In any event the adjudication had taken place in 1998 at which time Section 11AC was on the Statute book.”
6. We are afraid the interpretation canvassed by the revenue does not flow from the Hon’ble Apex Court’s observations. In the present case, the Tribunal is the first Appellate Authority and the judgement does not rule that a new question of law cannot be raised before the Tribunal in the first appeal. In this view of the matter, we are not able to agree with the Revenue’s contention.
7. As the issue on merits is covered in favour of the appellant by our earlier orders, the pre-deposit of duty demand is waived and recovery stayed till the disposal of the appeal.