{"id":164204,"date":"2007-10-05T00:00:00","date_gmt":"2007-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cce-lucknow-vs-ms-wimco-ltd-on-5-october-2007"},"modified":"2017-10-26T02:04:55","modified_gmt":"2017-10-25T20:34:55","slug":"cce-lucknow-vs-ms-wimco-ltd-on-5-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cce-lucknow-vs-ms-wimco-ltd-on-5-october-2007","title":{"rendered":"Cce Lucknow vs M\/S. Wimco Ltd on 5 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Cce Lucknow vs M\/S. Wimco Ltd on 5 October, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4567 of 2002\n\nPETITIONER:\nCCE Lucknow\n\nRESPONDENT:\nM\/s. Wimco Ltd\n\nDATE OF JUDGMENT: 05\/10\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tChallenge in this appeal is to the order passed by the
\nCustoms Excise and Gold (Control) Appellate Tribunal, New
\nDelhi (in short the CEGAT). By the impugned judgment dated
\n28.11.2001 CEGAT allowed the appeal filed by the respondent
\nholding that waste\/scrap\/parings of paper board which are
\ngenerated during the process of manufacture of paper and
\npaper board is nothing new, distinct in name, character and
\nuse for the purpose of levy of duty. Therefore, it was held that
\nno duty was chargeable.\n<\/p>\n
2.\tBackground facts in a nutshell are as follows:\n<\/p>\n
     During\tinvestigation\tof the accounts of M\/s Wimco
\nLtd. Bareilly, it transpired that the respondent was using
\npaper and paper board for the manufacture of printed paper
\nboard boxes. During the course of manufacture of such boxes,
\nwaste\/scrap\/parings are generated, it was alleged that this
\nwaste was classifiable under Chapter sub-heading 4702.90 of
\nCentral Excise Tariff Act, 1985 (in short the Tariff Act).
\nScrutiny of records revealed that the respondent was selling
\nthis waste\/scrap\/parings. It was also noticed that they did not
\ndeclare transactions of waste\/scrap\/parings, and did not file
\nclassification list under Rule 173-B of the Central Excise
\nRules, 1944 (in short the Rules) and did not issue any
\ninvoices prescribed under Rule 52-A. Accordingly, a show
\ncause notice (in short SCN) was issued to the respondent
\nasking it to explain as to why duty amounting to
\nRs.23,20,000\/- should not be demanded and why penalty
\nshould not be imposed and why interest should not be
\ncharged. In reply to the SCN, the respondent submitted that
\nscrap is generated at two stages; that it arises before the
\nmanufacturing operation starts; that the demand of duty on
\nthe quantity of scrap which is generated during the pre-
\nmanufacturing operations cannot be sustained; that the scrap
\nis not a result of manufacturing process; that the word
\nmanufacture is generally understood to mean as bringing into
\nexistence a new substance and does not mean merely to
\nproduce some changes in a substance; that manufacturing
\nimplies a change; that every change in an article is the result
\nof treatment; that every treatment is not manufacture as
\nsomething more is necessary; that there must be
\ntransformation and a new different article must emerge having
\na distinctive name, character and use. It was submitted that
\nin their case, generation of scrap was not manufacture.\n<\/p>\n
     It was also submitted that longer period is invokable and
\nsubstantial part of the demand was beyond a period of six
\nmonths; there was no evidence of any suppression or mis-
\nstatement; there was a bona fide belief that waste generated in
\nthe process of manufacture of match boxes was not dutiable
\nas it arose out of duty paid paper and card board.\n<\/p>\n
     Commissioner of Central Excise confirmed the payment
\nof duty amounting to Rs.23,20,000\/- imposed penalty of
\nidentical amount and also  directed payment of interest at the
\nappropriate rate under Section 11 AB  of the Central Excise
\nAct, 1944 (in short the Act).\n<\/p>\n
3.\tThe stand of the respondent before the CEGAT was that
\nthere was no manufacture inasmuch as whatever is used is
\npaper and paper board and whatever is generated as
\nwaste\/scrap\/parings is generated out of duty paid paper and
\npaper board and a new different article must emerge having a
\ndistinctive name, character and use to constitute
\nmanufacture. It was submitted that in their case, generation of
\nscrap was not manufacture and hence not dutiable. In
\nessence, it was submitted that since duty paid paper and
\npaper board was used by it, duty cannot be demanded again
\non waste\/scrap\/parings which are nothing but paper and
\npaper board.\n<\/p>\n
4.\tIt was also submitted that if Departments stand is
\naccepted, assessee would be entitled to modvat credit. Such
\ncredit available on paper and paper board would be much
\nhigher than duty payable on waste\/scrap\/parings.\n<\/p>\n
5.\tThe stand of revenue on the other hand was that what is
\ngenerated is waste\/scrap\/paring and there is specific heading
\nfor these items in the Central Excise Tariff and, therefore, the
\nitems are classified distinctively under Chapter heading
\n4702.90.  It was submitted that as a result of manufacture,
\nwaste\/scrap and paper board come into existence which are
\ndistinct in name, character and use and, therefore, dutiable.\n<\/p>\n
6.\tTribunal noted that the Chapter Heading 4702.90 of the
\nSchedule to the Tariff Act reads Recovered (waste and scrap)
\npaper or paper board, and is not recovered waste or scrap. In
\nthe instant case, whatsoever is generated in the process of
\nmanufacture of match boxes is paper and paper boards in
\nsmall pieces. This paper and paper board are used as inputs
\nand continue to be paper and paper board when they appear
\nas waste\/scrap\/parings. Charging of duty tantamounts to
\ncharging of duty on the same product twice. CEGAT also noted
\nthat in the instant case there is no value addition.\n<\/p>\n
7.\tIn support of the appeal, learned counsel for the
\nappellant submitted that effect of classification list filed under
\nRule 173 B has not been considered and there is a sale of
\nwaste\/scrap\/parings.\n<\/p>\n
8.\tThe Commissioner observed that the benefit of exemption
\nunder Notification No. 89\/95 dated 18.5.1995 is not available.\n<\/p>\n
9\tReference was made to following observations of the
\nadjudicating authority :\n<\/p>\n
     I find that the case has not been
\ncontested on merits at all by the party. The
\nSCN to the party was issued on the allegation
\nthat during  the course of manufacture of
\nprinted paper board boxes waste parings scrap
\nis generated which is classifiable under the
\nChapter sub-heading 4702.90 of the schedule
\nto the Central Excise Tariff Act 1985 (for short
\ntariff).  The scrap so generated is liable to
\nCentral Excise duty if sold to outside buyers
\nby the manufactures who also manufacture
\nand clear other excisable goods on payment of
\nduty.  Since the party manufacture and
\nclear matches apart from the scrap waste
\nparings which are chargeable to duty they are
\nnot entitled to the benefit of exemption from
\nduty in terms of Notification No. 89.95 dated
\n18.5.95.\n<\/p>\n
     In this case the partys contention that
\nsuch waste arises during pre-manufacturing
\noperation is not correct.  Because manufacture
\nmeans the entire process of the converting raw
\nmaterial into finished goods.  It is an
\nafterthought that they divided their waste &
\nscrap in two categories because in their 173B
\ndeclaration dated 28.2.1999 manufacturing
\nprocess of match has been described in detail
\nin which phase-II (process of making of empty
\nboxes) starts from the receipts of cardboard in
\nthe form of Jumbo Rolls from various papers
\nmills.  So this variety of scrap cannot be said
\nto be a pre-manufacturing waste.  The
\nmanufacturing activity commences the
\nmoment the processing of the inputs is started
\ninside the manufactory.  The party has not
\ndenied that the so called pre-manufacturing
\ntook place somewhere else then the
\nmanufacturing premises.    <\/p>\n
10.\tLearned counsel for the respondent supported the order
\nof the CEGAT.\n<\/p>\n
11.\tIn Commissioner of Central Excise v. Indian Aluminium
\nCo. Ltd.<\/a> (2006 (203) ELT (S.C.) 3) it was observed inter alia as
\nfollows:\n<\/p>\n
18.\tThe entry in question does not contain
\nany legal fiction.  It does not say that any
\nresidue having more than a certain percentage
\nof the metal would be deemed to have been
\nmanufactured or would be excisable.  Records
\nmaintained by Respondent whereupon the
\nRevenue has relied upon may be a relevant
\nfactor to identify dross as a marketable
\ncommodity but then percentage of the metal in
\ndross may not by itself make it excisable, if it
\nis otherwise not.  An article is not exigible to
\ntax only because it may have some saleable
\nvalue.\n<\/p>\n
19.\tIt may be that dross no longer answers
\nthe description of waste and scrap in view of
\nthe changes made in the Tariff.  It is, however,
\nalmost well-settled that even if some
\npercentage of metal is found in the dross the
\nsame in absence of something more in the
\nentry would not be rendered as an excisable
\narticle.  This Court in Indian Aluminum
\n(supra) in fact noticed that some amount of
\nmetal is found in dross and skimming.  A
\ndistinction, however, was made that dross and
\nskimming are not metals in the same class as
\nwaste or scrap.  Even assuming that dross
\nhaving a high percentage of metal is a
\nmarketable commodity, the question, in our
\nopinion, would arise as to whether the same
\ncan be said to be a manufactured product.
\nThe term manufacture implies a change.
\nEvery change, however, is not a manufacture.
\nEvery change of an article may be the result of
\ntreatment, labour and manipulation.  But
\nmanufacture would imply something more.
\nThere must be a transformation; a new and
\ndifferent article must emerge having a
\ndistinctive name, character or use. [See Union
\nof India and Another v. Delhi Cloth and
\nGeneral Mills Co. Ltd. AIR<\/a> 1963 SC 791].<\/p>\n
12.\tIt is to be noted that merely because there is a tariff entry
\nit does not become excisable unless manufacture is involved.
\nIn Commissioner of Central Excise, Chandigarh-I v. Markfed
\nVanaspati & Allied Industries<\/a> [2003 (153) ELT 491 (S.C)] it was
\nobserved as follows:\n<\/p>\n
2.\tThe question for consideration is whether
\n“spent earth” is liable to excise duty or not.
\nUnder the Tariff, prior to its amendment in
\n1985, it had been consistently held that “spent
\nearth” was not liable to duty. However, with
\nthe enforcement of new Tariff in 1985, a
\nconflict arose between various benches of the
\nTribunal. Some benches held that “spent
\nearth” was still not excisable, whereas other
\nbenches held that, as it now stood included by
\na specific sub-heading, it became excisable. In
\nview of these conflicting decisions, the matter
\nwas placed before the larger Bench of the
\nCEGAT which by the impugned judgment has
\nheld that “spent earth” was still not dutiable.
\nHence these appeals.\n<\/p>\n
3. The only question for consideration for us is
\nwhether a goods becomes excisable merely
\nbecause it falls within a tariff item. After 1985
\nTariff item 1507 reads as “residue resulting
\nfrom the treatment of fatty substances”. It is
\nsubmitted that “spent earth” is a residue
\nresulting from treatment and is thus now
\nexcisable. What we have to consider is whether
\nthe well settled twin tests of “manufacture and
\nmarketability” cease to apply if a goods falls
\nwithin a tariff entry.\n<\/p>\n
4. Prior to this Entry being introduced in 1985,
\nit had been consistently held that “spent earth”
\nwas not manufactured. It had been
\nconsistently held that “spent earth” remained
\n“earth” even after processing. It had been
\nconsistently held that all that happened was
\nthat its capacity to absorb was reduced. It had
\nbeen consistently held that duty having been
\npaid on “earth”, no duty was leviable on “spent
\nearth as it remained the same product. It had
\nbeen held that to levy duty on “spent earth”
\nwould amount to levying duty twice. It is on
\nthis ground that it has been held that “spent
\nearth” was not excisable. Even now it has not
\nbeen shown that there is manufacture. The
\nonly submission is that “spent earth” is a
\nresidue resulting from the treatment of fatty
\nsubstances. The submission is that now that
\nthere is a specific Entry which makes “residue
\nresulting from the treatment of fatty
\nsubstances” excisable, duty has to be paid on
\n“spent earth”. In other words, what is
\nsubmitted is that merely because a good falls
\nwithin one of the Tariff items it becomes
\nexcisable.\n<\/p>\n
5. In support of their submission, reliance in
\nplaced on the case of Lal Wollen & Silk Mills (P)
\nLtd., Amritsar v. Collector of Central Excise,
\nChandigarh,<\/a> (1999 (4) SCC 466). In this case
\nthe question was whether excise duty was to
\nbe paid on dyed worsted woolen yarn made
\nfrom duty paid worsted woolen grey yarn. It
\nwas argued that there was no manufacture.
\nThe Court however held as follows:\n<\/p>\n
“Admittedly both “dyed yarn” and “grey
\nyarn” are covered by two separate distinct
\nheads of tariff items with different duty.
\nSo this itself recognizes them to be two
\ndifferent goods with separate levy. In this
\nview of this it cannot be urged that there
\nis no manufacture of “dyed yarn” from the
\n“grey yarn”.\n<\/p>\n
     Undoubtedly this authority appears to
\nsupport the contention which is raised.\n<\/p>\n
6. However, it appears to us that the
\nobservations made in this authority are “per
\nincuram”. In so observing, the decision of a
\nlarger Bench of this Court in the case of
\nCollector of Central Excise, Indore v. Universal
\nCable Ltd.<\/a> reported in 1995 Supp (2) SCC 465,
\nhas not been noted or considered. In this case
\nan argument that a good become excisable
\nbecause it is covered by Tariff Entry, has been
\nnegatived. In the case of B.P.L.\n<\/p>\n
Pharmaceuticals Ltd. v. Collector of Central
\nExcise, (1995 Supp (3) SCC 1) it has also been
\nheld that merely because there is a change in
\nthe Tariff Item the goods does not become
\nexcisable. Subsequently in a judgment dated
\n13th February, 2003 in Civil Appeal No. 6745
\nof 1999 it has been held that merely because
\nan item falls in a Tariff Entry, it does not
\nbecome excisable unless there is manufacture
\nand the good is marketable. In Lal Woolen &
\nSilk Mills’ case (supra) it has been held that
\nthe twin test of manufacture and marketability
\nis not to apply. It is not possible to accept the
\ncontention that merely because an item falls in
\na Tariff Entry it must be deemed that there is a
\nmanufacture. The law still remains that the
\nburden to prove that there is manufacture and
\nthat what is manufactured is on the revenue.
\nIn this case no new evidence is placed to show
\nthat there is manufacture. “Spent earth” was
\n“earth” on which duty has been paid. It
\nremains earth even after the processing. Thus
\nif duty was to be levied on it again, it would
\namount to levying double duty on the same
\nproduct.<\/p>\n
13.\tWhat amounts to manufacture has been dealt with by
\nthis Court in Kores India Ltd., Chennai v. Commissioner of
\nCentral Excise, Chennai<\/a> (2005 (1) SCC 385).\n<\/p>\n
14.\tSince CEGAT has not dealt with the factual scenario in
\ndetail and has abruptly come to an abrupt conclusion that no
\nmanufacture is involved, the matter is remitted to it for fresh
\nconsideration in the light of decisions referred to above.\n<\/p>\n
15.\tThe appeal is allowed. No cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Cce Lucknow vs M\/S. Wimco Ltd on 5 October, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4567 of 2002 PETITIONER: CCE Lucknow RESPONDENT: M\/s. Wimco Ltd DATE OF JUDGMENT: 05\/10\/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-164204","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCce Lucknow vs M\/S. Wimco Ltd on 5 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/cce-lucknow-vs-ms-wimco-ltd-on-5-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cce Lucknow vs M\/S. 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