{"id":203993,"date":"2001-05-17T00:00:00","date_gmt":"2001-05-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-r-foils-ltd-new-delhi-vs-cce-new-delhi-on-17-may-2001"},"modified":"2017-04-05T20:36:46","modified_gmt":"2017-04-05T15:06:46","slug":"s-r-foils-ltd-new-delhi-vs-cce-new-delhi-on-17-may-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-r-foils-ltd-new-delhi-vs-cce-new-delhi-on-17-may-2001","title":{"rendered":"S.R. Foils Ltd., New Delhi vs Cce, New Delhi on 17 May, 2001"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
S.R. Foils Ltd., New Delhi vs Cce, New Delhi on 17 May, 2001<\/div>\n
Equivalent citations: 2001 (76) ECC 358, 2001 (138) ELT 719 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
   P.G. Chacko  <\/p>\n
 1. Two of these appeals are against Order-in-Original No.22\/99 of the Commissioner of Central Excise, Delhi-I dated 22.11.1999 passed in adjudication of show-cause notices (SCNs) dated 12.04.1999 and 12.07.1999 and the remaining appeal is against the same Commissioner’s Order-in-Original No.25\/99 dated 22.12.1999 passed in adjudication of SCN dated 05.10.1999. We have examined the records, which have brought out the facts briefly stated below:\n<\/p>\n
2. Central Excise (Preventive) officers on 14.10.1998, intercepted one ‘tempo’ loading with 74 cartons containing Aluminium home foils and cling film of plastic consigned by M\/s S.R. Foils Ltd., Hari Nagar, New Delhi to M\/s Sugandh Agencies, Chandigarh, alone with 65 cartons containing tissue paper rolls, napkins and facial tissue consigned by M\/s S.R. Tissues Pvt. Ltd., Hari Nagar, New Delhi to the same consignee. The officers, after recording the statement of the driver of the vehicle and examining the documents produced by him, seized the consignment of aluminium home foils and cling film of plastic, which were believed to be liable to confiscation, on 15.10.1998. In follow-up action, the officers visited the factory premises and office premises of M\/s S.R. Foils. In the factory premises, they found aluminium home foils, cling film etc., besides machines installed for converting jumbo rolls of aluminium foil into smaller rolls of aluminium home foils by the process of cutting into length of 9 mtrs or 18 mtrs. In the office premises, the officers found branded goods cleared from the factory. All these (allegedly manufactured) goods were also seized as in the case of the aforesaid consignment. During the further course of enquiry, statements of Shri Rakesh Gupta, Director, S.R.Foils Pvt. Ltd., were recorded under Section 14 of the Central Excise Act. On the basis of those statements and other materials gathered in the course of enquiry by the officers, two SCNs were issued by the Department. The SCN dated 12.04.1999 proposed to confiscate the seized goods and impose penalties on the Company and its Director, Shri Rakesh Gupta. The subsequent SCN dated 12.07.1999, which invoked the extended period of limitation under Section 11-A(1) of the Central Excise Act, raised a demand, against the company, of Central Excise duty of Rs.96,19,320.25 on aluminium home foils cleared from their factory during the period from 01.04.1994 to 31.03.1999 and proposed to impose penalty on them. This SCN, further, proposed to impose penalty on Shri Rakesh Gupta under Rule 209A of the Central Excise Rules for his alleged omissions and commissions. The company and its Director Shri Rakesh Gupta contested both the SCNs, which were eventually adjudicated by the Commissioner as per Order-in-Original No.22\/99, the operative part of which reads as under:-\n<\/p>\n
 i) I order confiscation of seized 74 cartons intercepted in transit containing Aluminium Home Foils valued at Rs.87,433.44 under Rules 9(2), 173(Q) 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.\n<\/p>\n
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, 1944. 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.\n<\/p>\n
 iii) I order confiscation of goods seized from factory premises valued at Rs.23,41,204\/- 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 this order.\n<\/p>\n
 iv) I confirm and demand the Central Excise duty of Rs.96,19,320.25 involved on the clearances\/removal of excisable goods during the period 1.4.94 to 31.3.99 under Rule 9(2) of the Central Excise Rules, 1944 readwith proviso to Section 11A(1) of the Central Excise Act, 1944 by invoking the extended period off five years.\n<\/p>\n
 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 readwith Section 11AC of the Central Excise Act, 1944.\n<\/p>\n
 vi) I also order to charge interest at appropriate rate on the leviable Central Excise duty under Section 11AB of the Central Excise Act, 1944.\n<\/p>\n
 vii) I also impose a penalty of R.200000 on Shri Rakesh Gupta, Director of the party under Rule 209A of the Central Excise Rules, 1944.\n<\/p>\n
Appeal No.841 filed by the company and appeal No.843 filed by Shri Rakesh Gupta are against the above order of the Commissioner.\n<\/p>\n
 3. A third SCN dated 05.10.1999 had also been issued to S.R.Foils Ltd. demanding duty of Rs.54,14,306\/- on the clearances of aluminium home foils effected during the period, April to September 1999, on the basis of allegations similar to those made in the earlier SCNs. This SCN was within the normal period of limitation under Section 11A(1) of the Act. It was in adjudication of this SCN that the Commissioner passed Order-in-Original No.25\/99 as under:-\n<\/p>\n
 In view of discussion and findings, as contained in the Order-in-Original No.22\/99 dated 22.11.99, I pass the following orders:-\n<\/p>\n
  ORDER    <\/p>\n
 I demand Rs.54,14,306\/- under Section 11A of the Central Excise Act, 1944.\n<\/p>\n
 The subject Show Cause Notice has unjustifiably invoked the penal provisions, as this was a consequential demand issued for the normal period under Section 11A. Hence I refrain from imposing any further penalty.\n<\/p>\n
 The above order of the Commissioner is under challenge in appeal No.842 filed by the company.\n<\/p>\n
 4. We have heard both sides.\n<\/p>\n
 5.1 Ld. Advocate Shri V.Lakshmikumaran for the appellants submitted that the company did not undertake any manufacturing activity in their factory. What they did was that duty-paid aluminium foil of appropriate width (30 cms, 40 cms) in jumbo rolls were bought from the market and merely cut to smaller lengths (9 mtrs, 18 mtrs) with a cutting machine. They did not do any slitting operation on the jumbo rolls as alleged in SCN. The foils that resulted from the cutting operation were wound over paper cores and marketed as “aluminium home foil”. The foils sold to bulk consumers like hotels and airlines flight kitchens were without any primary packing. However, the foils meant for household use were packed in card board monocartons with or without metal strip. Aluminium foils which were marketed as “chapati wraps” were obtained by cutting jumbo rolls of aluminium foil of width 25 cms into rectangular pieces of size 25 cmsx22 cms and the same were supplied in a form in which a sheet of paper was placed between two sheets of aluminium foil so that the foil sheets did not stick together due to atmospheric moisture. Ld. Advocate submitted that these activities did not amount to manufacture inasmuch as the process of mere cutting of the jumbo rolls did not bring about any change of character or use of the commodity. The repacking was only for facilitating use of the “home foils” and this nomenclature was only to suggest household use of the item. Counsel asserted that, in fact, there was no change in the name, character or use of the aluminium foil. He advanced similar argument in respect of chapati wrap too and claimed both the products to be non-manufactured and hence non-excisable. Counsel further submitted that the SCN had proposed to demand duty on aluminium home foil under Tariff Sub-heading (TSH) No.7607.90 but the Commissioner’s order confirmed the demand under TSH 7607.30. Duty could not be demanded under a classification not proposed in the SCN. Counsel sought to draw support to this argument from the decisions of the Supreme Court in the cases of Hindustan Polymer Co. Ltd Vs CCE, Guntur [1999 (106) ELT 12] and Warner Hindustan Limited Vs CCE, Hyderabad [1999 (34) RLT 595] as well as the Tribunal’s decision in the case of Usha Industrial Corporation Vs CCE, Ahemdabad [2000 (37) RLT 374 (CEGAT)].\n<\/p>\n
 5.2 Harping on the point of limitation, ld. Counsel submitted that the company was, through out the material period, under the bonafide belief that the process of cutting jumbo rolls into smaller lengths did not amount to manufacture and hence the products in question were not products of “manufacture” within the meaning of this expression under Section 2(f) of the Act. In Trade Notice No.56\/89 dated 09.06.1989 of Bombay-I Collectorate, the department itself had taken the view that the process of cutting and slitting of jumbo rolls of X-ray film and graphic art film would not amount to manufacture for a fresh levy of duty of excise on the products of the process. In the cases of M\/s Miracle Foils (P) Ltd. and M\/s Foils India Laminates (P) Ltd. also, the Department took the same view in respect of the activity of cutting jumbo rolls of aluminium foil. The judgment of the Madras High Court in the case of Computer Graphics (P) Ltd Vs Union of India [1991 (52) E.L.T.491 (Mad)] also persuaded the appellants to maintain a belief as above. There were decisions of this Tribunal also which prompted the company to believe that the activity of cutting jumbo rolls of aluminium foil did not amount to manufacture. Ld. Advocate cited a few decisions of the Tribunal in this context. He further pointed out that, even prior to the issuance of SCN, the appellants had by letters apprised the department of the fact that the Department’s own stand in M\/s Miracle Foils’ case had made them believe that their activity did  not amount to manufacture. In all these circumstances, Counsel argued, it was no correct for the Commissioner to hold that the appellants had suppressed their activity from the department with intent to evade payment of excise duty. He further contended that even if the aluminium home foils and chapati wraps were to be treated as manufactured goods chargeable to duty of excise, the company could have taken Modvat credit of the duty paid on the jumbo rolls and utilised the same for payment of duty of excise on the said goods, in which event, according to the appellants’ calculation, there would be a surplus in their RG 23A Part.II. In such circumstances, ld. Counsel contended, there was no warrant for any allegation that the company had indulged in clearance of the goods with intent to evade payment of duty or that they had suppressed information before the Department with a similar intent. In this connection, Counsel relied on the decision of the Tribunal’s Larger Bench in Jay Yuhshin Ltd. Vs CCE [2000 (39) RLT 501)]. Ld. Counsel submitted that the allegation of suppression of facts with intent to evade payment of duty could not be established by the Department and, consequently, the extended period of limitation was wrongly invoked against the company.\n<\/p>\n
 5.3 Without prejudice to the submissions in para (5.1), ld. Advocate contested the Commissioner’s decision of confirming demand of duty under TSH 7607.30, by raising a plea that the aluminium home foils obtained from jumbo rolls were only “cut to size” and not “cut to shape” inasmuch as the appellants had not slit the jumbo rolls for reducing width thereof, nor perforated. Counsel also faulted the adjudicating authority’s demand for payment of duty on Cling film and Aluminium Service Trays (seized from the office and factory premises of the Company) notwithstanding the finding that the said goods were not manufactured but only traded in by the appellants. He also challenged the confiscation of these goods, for the same reason.\n<\/p>\n
 5.4 Ld. Advocate, further challenged the Commissioner’s order imposing penalty on the Company under Section 11AC of the Act and levying of interest on duty amounts under Section 11AB. He submitted that Sections 11AC and 11AB were introduced in the statute, by Finance Act 1996, w.e.f.28.09.1996 only and that the provisions had no retrospective effect. He cited case law in support of the plea that the provisions of Section 11AC were not applicable to a case of demand of excise duty for any period prior to 28.09.1996.\n<\/p>\n
 6. Ld. JDR. Shri M.P.Singh submitted that the issue whether the process of cutting\/slitting of jumbo rolls of aluminium foil to shapes and sizes and of packing the resultant foils amounted to manufacture was squarely covered by the decision of this Tribunal in the case of  Foils India Laminates Pvt. Ltd. Vs CCE, Jaipur [1999 (111) ELT 728 (T)]. With regard to the appellants’ contention that the adjudicating authority had classified the aluminium home foils under Sub-heading not proposed in the SCN, the DR submitted that the said authority could validly do so. In support of this submission, the DR relied on the Tribunal’s decision in the case of Matador Foam and Others Vs CCE, Kanpur [1999 (32) RLT 906], wherein it was held that classification was a question of law based on facts and, therefore, the Departmental authorities were not unjustified in resorting to classification under a different Tariff Heading than the one proposed in the SCN. Ld. DR submitted that perhaps the only infirmity in the classification was that the company had not been put to notice for classifying the aluminium home foils under TSH 7607.30. On this count, the matter could be remanded to the adjudicating authority, suggested ld. DR. The DR also opposed the Counsel’s arguments on limitation. He submitted that the appellants very well knew that they were engaged in the manufacturing activity of cutting\/slitting of jumbo rolls of aluminium foil, which was evident from the fact that the company had informed Sales Tax authorities that they were both trading in, and manufacturing, aluminium home foils. Once they were aware of the manufacturing activity, it was upto them to obtain the necessary Central Excise registration and to file the necessary declaration with the Department, which they did not do. Ld. DR, therefore, submitted that the appellants had suppressed the manufacturing activity from the Department and that their intent to evade payment of duty on the aluminium  home foils and chapati wrap manufactured and cleared from the factory during the material period covered by SCN dated 12.07.1999 was apparent from their conduct and, therefore, the extended period of limitation was invocable against them. Ld. DR, therefore, prayed for upholding the impugned orders.\n<\/p>\n
 7.1 We have carefully examined the submissions. We have not found any evidence on record to show that the appellants had performed any slitting operation on the jumbo rolls of aluminium foil. Their only activity on the jumbo rolls was cutting, as could be gathered from the evidence. There are mainly three issues before us, firstly whether the activity of cutting jumbo rolls of aluminium foil of specified widths into shorter lengths (9 mtrs, 18 mtrs), rewinding the resultant foils over card board cores and repacking the same in card board monocartons for being marketed as aluminium home foils amounts to manufacture under Section 2(f) of the Central Excise Act; secondly, whether the activity of cutting jumbo rolls of aluminium foil of width 25 cms into rectangular pieces of size 25 cmsX22 cms and then making what is called ‘Chapati Wrap’ by placing a sheet of paper between two sheets of the rectangular pieces of aluminium foil amounts to manufacture under Section 2(f) of the Act and thirdly, whether the demand of Central Excise duty raised in SCN dated 12.07.1999 is barred by limitation.\n<\/p>\n
 7.2 On the first issue aforesaid, we note that the issue is identical with the main issue decided by us in the case of S.R.Tissues Pvt. Ltd. Vs CCE, New Delhi as per Final Order No.518-519\/2000-C dated 28.09.2000 reported in 2001 (42) RLT 282 (CEGAT). In the case of S.R.Tissues (supra), the appellants were purchasing duty-paid jumbo rolls of tissue paper and cutting\/slitting the same to various sizes suitable for use as toilet paper, table napkin or facial tissue and repacking them. We held that the said activity did not amount to manufacture under Section 2(f) of the Central Excise Act, by relying on the decision of the Supreme Court in the case of Union of India Vs J.G.Glass Industries [1998 (97) E.L.T.5 (S.C.)] and the decision of the Madras High Court in the case of Computer Graphics Pvt. Ltd. Vs Union of India [1991 (52) E.L.T.491 (Mad)]. The ratio of our decision is contained in paragraphs (8.1) to (8.4) of the order, extracted below:\n<\/p>\n
  8.1 We have carefully considered the rival submissions. The fundamental question to be settled is whether M\/s. S.R.Tissues’ activity of converting jumbo rolls of tissue paper of facial tissues, napkins and tissues in roll from by cutting and slitting amounted to ‘manufacture’ as defined under Section 2(f) of the Central Excise Act. They purchased the jumbo rolls from the market and mechanically cut and slit the same to smaller sizes of required dimensions (suitable for use as facial tissues, napkins etc.) and packed the products separately and sold such packs under certain brand names in the market. It is not in dispute that the jumbo rolls of tissues used for the purpose were classifiable under Tariff Heading 48.03 and were already duty-paid. It is, again, not disputed that the facial tissues, napkins etc. obtained by the cutting and slitting of the jumbo rolls fell under TH 48.18. The dispute is whether the conversion of the former of the latter involved ‘manufacture’ as defined under Section 2(f) of the Act. A similar dispute had arisen in the case of Computer Graphics (supra) before the Madras High Court. The petitioners in that case had imported jumbo rolls of graphic art film on payment of customs duties, slit the same into various widths (20″, 30″ etc.), cut them into various lengths (10′, 200′ etc.), packed the products (called flats) in separate cartons and marketed the packs in India. The imported jumbo rolls were covered by the erstwhile Central Excise Tariff Item 37.02 and the flats fell under Tariff Item 37.01. The High Court negatived the Revenue’s contention that, there being a separate Tariffentry for the flats as distinct from the jumbo rolls, the flats could be classified as a manufactured product. The Court’s reasoned observation on the point runs thus:-\n<\/p>\n
  “Tariff Entry 37.01 and Tariff Entry 37.02 deal with two different resultant products of manufacture. If a person manufactures photographic film rolls, such manufacturing process would attract the levy of duty under Entry 37.02. If another person manufactures photographic flats and films, then that manufacturing process would attract Tariff Entry 37.01. But, if photographic flats or films are not manufactured at all, but only made out of jumbo rolls by cutting into smaller pieces, then there being no manufacturing process involved, Tariff Entry 37.01 cannot be made use of to hold that the petitioner should take out a licence.”\n<\/p>\n
The ld. Single Judge, relying on the interpretation of ‘manufacture’ given by the Supreme Court in Union of India Vs. Delhi Cloth and General Mills, AIR 1963 SC 791 and by the Madras High Court (Division Bench) in the case of Brakes India Ltd., 1986 (26) E.L.T.211, held that the process of slitting\/cutting jumbo film rolls into smaller sizes called ‘flats’ did not result in a distinct and different commodity and therefore the process did not amount to ‘manufacture’.\n<\/p>\n
 8.2 The ratio of the High Court’s decision in Computer Graphics (supra) is quite apposite to the case on hand. Had M\/s.S.R.Tissues manufactured tissue paper out of the necessary raw materials by using the required technology and cleared the paper in jumbo rolls of width exceeding 36 cm., for home consumption, the product would have been chargeable to duty under T.H. 48.03, subject to applicable Exemption Notification, if any Similarly if they had carried out the same process and cleared the resultant tissue paper in rolls not exceeding 36 cm. in width, duty would have been leviable on the product in terms of TH 48.18, subject to applicable Exemption Notification, if any. This is all what was meant by the legislature when it classified the jumbo rolls under TH 48.03 and the rolls of width not exceeding 36 cm under TH 48.18. Had the legislature intended that the mere activity of slitting and cutting jumbo rolls of duty-paid tissue paper into smaller sizes and packing the products for sale in the market should also be excisable, it would have enacted such intent into law through appropriate Section Note or Chapter Note in the Central Excise Tariff Such Section\/Chapter Note is conspicuously absent in the Tariff. Therefore, it has to be held that the existence of a separate Tariff Entry [TH 48.18] for the facial tissues, napkins etc, would not, by itself make these products excisable. The apex court’s decision in Prabhat Sound Studios (supra) is supportive of this view   <\/p>\n
 8.3 Their Lordships of the apex court, in the above case, were considering the question whether the activity of recording of sound on blank cassette tapes could be called ‘manufacture’ for the purpose of levy of Central Excise duty. The blank tapes were covered by entry (3) under Tariff Item 59 of the erstwhile Central Excise Tariff. While the sound-recorded tapes stood classified under entry (4) of the said T.I.59. Their Lordships observed that a manufacturer of cassette tapes might manufacture the tapes and, at his option, sell the blank tapes or record sound on them and thereafter sell the sounds-recorded tapes. It was to cover both these eventualities that the above two entries were provided under T.I.59. A separate entry for recorded tapes did not suggest that the process of recording sound on blank tapes amounted to manufacture. Shri Lakshmi Kumaran has heavily relied on this view of the apex court after drawing an analogy between the recording of sound of blank cassette tapes [in which process the cassette tapes falling under entry (3) get converted to sound-recorded cassette tapes falling under entry (4) under T.I. 59 ibid] and the activity of slitting and cutting of jumbo rolls of tissue paper [in which the jumbo rolls falling under Chapter Heading 48.03 get converted to smaller sizes falling under Chapter Heading 48.18 of the new Central Excise Tariff]. We note that the analogy is befitting the context and it could very well be held that the provision of a separate Chapter Heading (48.18) for tissue papers of smaller sizes than those in jumbo rolls (48.03) did not, by itself, purport to enact that the process of the jumbo rolls being slit and\/or cut to the smaller sizes amounted to ‘manufacture’ <\/p>\n
 8.4 ……………………………………………… We find that, by the said activity of slitting and cutting, no new commodity with different name, character, end-use or commercial identity emerged. Therefore, following the decision of the High Court in Computer Graphics (supra), we hold that the said activity of the assessees did not amount to ‘manufacture’. Further, the said activity also did not pass the two-fold test laid down by the Hon’ble Supreme Court in J.G. Glass Industries (supra), so as to be held to be ‘manufacture’. Ld. Commissioner’s decision on the point is patently erroneous. The Tribunal’s decisions in the cases of Reelco Paper Products, Purolator India and Hindustan Photo Films (supra) also support the appellants’ case. In Reelco Paper Products, the activity in question was slitting of jumbo reels of duty-paid paper into small sizes followed by perforation. Similar activity was carried out on jumbo rolls of cinematographic film (unexposed) in the case of Hindustan Photo Films. In Purolator India, the process considered was slitting, pleating and cutting of impregnated filter paper (in reels) to requisite small sizes. In all the c as es, the respective processes were held to be not amounting the manufacture.\n<\/p>\n
 In S.R.Tissues, we also examined Foils India Laminates (supra) cited by ld. DR and stated the reasons why we were not able to follow the view taken by the Bench in that case. We also distinguished, in that case, the Tribunal’s decision in Electronics Mechanical Industries Vs CCE [1995 (76) ELT 309)] relied on by adjudicating authority in the present case. Our reasoning is contained in para (8.5) of our order in S.R.Tissues’ case, which is extracted below;\n<\/p>\n
 8.5 In Foils India Laminates (supra) cited by ld. DR, a co-ordinate Bench of the Tribunal held that the process of slitting\/cutting of jumbo rolls of aluminium foils [Tariff Sub-Heading 7607.10[ into smaller [TSH 7607.30] called “house foils” amounted to manufacture. We note that the Bench took such a view without considering the Madras High Court’s decision in Computer Graphics (supra) which had been cited before it. The Tribunal’s decisions in Hindustan Photo Films (supra) and Reelco Paper Products (supra) cited before it and the arguments advanced on the basis of such decisions were also not considered by the Bench. Further, it appears, the apex court’s decision in Prabhat Sound Studios (supra) was not cited before the Bench in Foil India Laminates. In the circumstances, we are not able to follow the view taken by the Bench in Foils India Laminates (supra). In Electronics Mechanical Industries (supra) relied on by ld. DR, the Tribunal held that the slitting of jumbo rolls of audio tapes into tapes of narrower width called ‘pancakes’ amounted to manufacture. We note that this decision was rendered on the touchstone of marketability alone. By applying the yardstick of the High Court’s decision in Computer Graphics (supra) and the Supreme Court’s decision in Prabhat Sound Studies (supra), we find that the reliance placed by ld. DR on the Tribunal decision in Electrics Mechanical Industries (supra) is not acceptable.\n<\/p>\n
 17.3 In the instant case, in the SCN as well as in the order of adjudication, the aluminium foil in jumbo roll was held to be classifiable under TSH 7607.10. As regards the aluminium home foil obtained by cutting the jumbo roll, the SCN held it to be classifiable under TSH 7607.90, but the adjudicating authority held it to be classifiable under 7607.30. As regards chapati wrap, the SCN considered it to be classifiable under TSH 7607.20, 7607.30 or 7607.60  depending upon whether it was embossed, cut-to-shape or backed with paper. The Tariff Heading and its Sub-heading are as under:\n<\/p>\n
76.07        Aluminium foil (whether or not printed or \n\t          backed with paper, paperboard, plastics or similar backing materials) \n            of a thickness (excluding any backing) not exceeding 0.2 mm.\n\n7607.10 - Plain\n7607.20 - Embossed\n7607.30 - Perforated or cut-to-shape\n7607.40 - Coated\n7607.50 - Printed\n7607.60 - Backed\n7607.90 - Other    \n \n\n<\/pre>\n
 We have already found that, in the appellants’ factory, the jumbo rolls of aluminium foil were not subjected to slitting but were only  cut to smaller lengths like 9 mtrs, 18 mtrs etc. followed by rewinding over card board core and repacking for supply to households as “aluminium home foils”. We are unable to find fault with the Commissioner when he finds that the home foil obtained by cutting of jumbo rolls could be categorised as cut-to-shape and classified under TSH 7607.30. However, the mere existence of an entry like TSH 7607.30, different from the entry (TSH 7607.10) covering aluminium foil in jumbo rolls, in the Central Excise Tariff Schedule would not, per se, make the conversion of a jumbo roll into cut-to-shape foils an activity of manufacture. For such an activity to amount to manufacture under Section 2(f) of the Act, it must pass the two-fold test laid down by the Supreme Court inJ.G. Glass Industries (supra). We find that the mere cutting of jumbo roll to smaller lengths does not bring about any change of nomenclature or characteristics. The aluminium foil continues to be aluminium foil. In the market also, both the jumbo rolls and the home foils are only aluminium foils. In this view of the matter, the ratio of our decision in S.R. Tissues (supra), extracted above, is squarely applicable to the manufactural issue pertaining to aluminium home foils cleared by the present appellants. The facts of the two cases are similar. If at all there is any factual variation, the same appears to be the existence of slitting activity in addition to cutting in the case of S.R. Tissues, while there is no such slitting activity in the instant case, for which reason, the instant case must stand a stronger footing than the case of S.R. Tissues in the context of considering whether the process amounts to manufacture or not. The issues in the two cases are also analogous. The lines of arguments of the two sides have also been similar. In such circumstances, we think, we will be justified in following the ratio of our decision in S.R. Tissues (supra) and holding that the activity of the present appellants viz. cutting jumbo rolls of aluminium foil into smaller lenghts 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. Therefore, we hold 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. In view of this finding of ours, it is not necessary for us to go into the question whether it was permissible for the Commissioner to classify the home foils under TSH 7607.30 in stead of TSH 7607.90 proposed in the SCN.\n<\/p>\n
 7.4 Now, we shall turn to chapati wrap. Each chapati wrap consists of two rectangular pieces of aluminium foil (25 cmsX22 cms) with a piece of paper placed between them. The rectangular pieces of aluminium foil required for the purpose are obtained by cutting jumbo roll of aluminium foil of width of 25 cms. The appellants’ case is that the interleaf of paper between two rectangular pieces of aluminium foil was used for preventing the foils from sticking together and, therefore, the foils could not have been said to be backed with paper so as to attract TSH 7607.60. The foils in the chapati wrap were also not embossed, perforated, coated or printed, nor could they be said to be ‘cut-to-shape’, and on this basis, the appellants have ruled out classifiability of chapati wrap under TSH Nos.7607.20 7607.30, 7607.40 and 7607.50. They have also argued against classifying chapati wrap under TSH No.7607.90, on the ground that the foils were not subjected to any other process i.e., any process other than the processes mentioned against TSH 7607.20 to 7607.60. They have also contended that no commodity commercially distinct from aluminium foil in jumbo roll resulted from their activity of making chapati wrap. We are unable to accept the arguments on manufacture. Unlike aluminium home foils, a chapati wrap is not the same as aluminium foil. It is a product made out of two different inputs, namely, aluminium foil and paper. Even according to the appellants, the interleaf of paper between two rectangular pieces of aluminium foil in the chapati wrap prevents the two foils from sticking together. Had the interleaf not been used, the foils would have stuck together had rendered the product unsuitable for its intended purpose and there would not have been any takers for the product in the market. In other words, the appellants’ activity of placing a sheet of paper as interleaf between two pieces of aluminium foil rendered the product marketable. Further, the product was know in the market as chapati wrap and not as aluminium foil. Thus there was a change in nomenclature as well. Chapati wrap is a commodity of commercial identity distinct from aluminium foil and paper. We observe that the product would pass the two-fold test laid down by the Supreme Court in J.G. Glass Industries (supra). Therefore, it must be held to have resulted from a process of manufacture contemplated under Section 2(f) of the Central Excise Act and to be an excisable commodity. We do so.\n<\/p>\n
 7.5 We shall now deal with the third issue pertaining to limitation. The SCN dated 12.07.1999 demanding Central Excise duty on the aforesaid products relates to the period 01.04.1994 to 31.03.1999. The appellants have submitted that a major part of the demand is beyond the normal period of six months prescribed under Section 11A of the Central Excise Act. They have further submitted that the extended period of limitation of five years under the proviso to Section 11A(1) was not invokable against the company inasmuch as they had no intent to evade payment of duty on the goods. They were under the bonafide belief that the process of cutting of jumbo rools did not amount to manufacture and, therefore, the home foils and chapati wrap were not excisable. Such a belief is claimed to have been occasioned by the Department’s view as conveyed in Bombay-I Collectorate Trade Notice No.56\/1989 dated 09.06.1989 to the effect that cutting and slitting of jumbo rolls of X-ray films, graphic art films etc. did not amount to manufacture. The appellants have also relied on similar view taken by the Department in the cases of M\/s Miracle Foils (P) Ltd and M\/s Foils India Laminates (P) Ltd. They have also relied on the Madras High Court’s decision in Computer Graphics (supra). However, the appellants have never had any case that they had maintained a belief as above in respect of their activity of placing interleaf of paper between pieces of aluminium foil for making chapati wrap. They have not claimed to have believed that such activity did not amount to manufacture. Therefore, the above arguments advanced in relation to bonafide belief in respect of the process of cutting of jumbo rolls of aluminium foil cannot be extended to the activity of plaing paper interleaf between foils. We have found no evidence on record to show that the appellants had disclosed the said activity to the department at any point of time prior to commencement of departmental investigation. On the other hand, they were engaged in the manufacture and clearance of chapati wrap without Central Excise licence\/registration, without observing other formalities under the law and without payment of duty. Therefore, apparently, there could be suppression, on the appellants’ part, of the above manufacturing activity form the department, within tent to evade payment of duty on chapati wrap. The Commissioner has found to this effect. We have also noted that the appellants have no case that the Commissioner’s finding is beyond the scope of the SCN. We, therefore, uphold the adjudicating authority’s finding, against the appellants, of suppression with intent to evade duty. The larger period of limitation was only rightly invoked for demanding duty on chapati wrap. Ld. Counsel’s plea that, even if duty of excise were to be paid on the aluminium home foils and chapati wrap, it would have been permissible for them to avail the benefit of Modvat credit on the jumbo rolls (inputs) and utilise the same for payment of duty on the impugned goods and, therefore, there was no justification for inferring intent to evade payment of duty does not appear to be impressive inasmuch as the aluminium foil in jumbo roll was only one of the inputs for chapati wrap and it has not been shown to us that availment of Modvat credit on that input would have given rise to a revenue neutral situation in respect of chapati wrap. The larger Bench decision in Jay Yuhshin (supra) will not, therefore, be of any avail to the appellants.\n<\/p>\n
 7.6 We have found that SCN dated 12.07.1999 demanding duty on chapati wrap for the period 01.04.1994 to 31.03.1999 is not hit by limitation. The appellants have no case that the demand raised by SCN dated 05.10.1999 is time-barred. Hence the company has to pay duty of excise on the chapati wraps manufactured and cleared from their factory during 01.04.1994 to 30.09.1999 as also on those seized by the department from their office\/factory premises during such period. However, as we are unable to sustain the classification of the goods confirmed by the Commissioner under TSH 7607.30 for the reason that he has not stated any reason for preferring this Sub-heading to the other Sub-headings for chapati wrap, we would set aside the demand raised under that Sub-heading and remit the classification part of the dispute relating to chapati wrap back to the adjudicating authority for fresh reasoned decision and for re-quantification of duty demand on that basis.\n<\/p>\n
 7.7. In the light of our decision on excitability of aluminium home foil, the said goods cannot be confiscated. The Commissioner’s order of confiscation of chapati wrap also will be set aside in view of our decision recorded in para (7.6) and the question of confiscability of the goods will also be remanded to the adjudicating authority. As regards the other goods viz. Cling film of plastic and Aluminium trays, the department has never had a case that those goods were manufactured in the appellants’ factory. In fact, the department has only accepted those goods as traded goods. Therefore, neither any confiscation nor demand of any duty can be sustained in respect of such goods.\n<\/p>\n
 7.8 Regarding penalty, we find that the Commissioner imposed mandatory penalty on the company under Section 11AC of the Central Excise Act and a penalty Excise Rules. The duty demand was for a period from 01.04.1994 and the mandatory penalty imposed on the company was based on the quantum of such duty. Now that we have held that the duty demands are unsustainable, the mandatory penalty also has to be set aside. As regards the penalty imposed on Shri Rakesh Gupta under Rule 209A, we find that the Commissioner has not recorded any finding to the effect that he indulged in omissions or commissions attracting the mischief of Rule 209A. Any authority seeking to invoke this Rule must establish that the person against to whom the Rule is sought to be invoked had knowledge or reason to believe that any excisable goods which he might have dealt with in any manner were liable to confiscation under the Central Excise Act or the Central Excise Rules. In the instant case, we have already found that one of the impugned goods was not excisable, and the same was not liable to be confiscated. Even in respect of the other goods (chapati wrap) which was excisable, there was no finding in the impugned order that Shri Rakesh Gupta dealt with the said goods with knowledge or belief that the goods were liable to confiscation. In the circumstances, the penalty imposed under Rule 209A on Shri Rakesh Gupta cannot be sustained.\n<\/p>\n
 8. In view of our findings recorded herebefore, the impugned orders are set aside and appeal Nos.841 and 842 are allowed partly on merit and partly be remand, while appeal No.843 is allowed as prayed for. In relation to chapati wrap, the adjudicating authority shall (i) decide classification afresh in accordance with law and natural justice and pass a reasoned order, (ii) re-quantify demand of duty on the basis of such classification and (iii) decide afresh on confiscability of the seized goods and on penal liability (under Section 11AC) and interest liability (under Section 11AB) of the manufacturer, having regard to the relevant findings contained in this order.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi S.R. Foils Ltd., New Delhi vs Cce, New Delhi on 17 May, 2001 Equivalent citations: 2001 (76) ECC 358, 2001 (138) ELT 719 Tri Del ORDER P.G. Chacko 1. Two of these appeals are against Order-in-Original No.22\/99 of the Commissioner of Central Excise, Delhi-I dated 22.11.1999 passed in […]<\/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":[41,33],"tags":[],"class_list":["post-203993","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nS.R. 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