Gujarat High Court
Commissioner Of Central Excise& ... vs M/S. India Medtronics Pvt. ... on 13 January, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
O/TAXAP/1424/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1424 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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COMMISSIONER OF CENTRAL EXCISE& CUSTOMS, VADODARA-
II....Appellant(s)
Versus
M/S. INDIA MEDTRONICS PVT. LTD....Opponent(s)
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Appearance:
MR GAURANG H BHATT, ADVOCATE for the Appellant(s) No. 1
RULE SERVED for the Opponent(s) No. 1
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Page 1 of 5
O/TAXAP/1424/2006 JUDGMENT
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 13/01/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) We have heard learned Central Government Standing Counsel Mr. Gaurang H. Bhatt appearing for the revenue. Though notice has been served on the respondent, no one appears.
2. This Tax Appeal was admitted on the following substantial question of law.
"Whether in the facts and circumstances of the case, the process carried out by the assessee will amount to manufacture or not?
3. The dispute between the parties was with regard to excisability of the respondent's product "custom pack". The appellant was of the opinion that the product is a manufactured product attracting excise duty whereas the assessee contended that various activities undertaken by them do not result in emergence of a new manufactured product. One of the seized records by the revenue was a file named "Business Quality System - Custom Pack Level-III"
which contained a set of documents titled "manufacturing procedure - Customs Pack". The aforesaid filed contained manufacturing flow chart of the customs pack showing various stages of the manufacture of said pack like tube cutting, Page 2 of 5 O/TAXAP/1424/2006 JUDGMENT taping, capping, joints, tie bands, line sub assembly, sash wrap, final wrap, pack label, heat seal, inspection, sterilization,packing Q.C. release etc. According to the appellant, the respondent themselves had claimed `customs pack' to be a manufacturing activity in the declaration dated 26.9.1991 relating to manufacture of the customs pack claiming exemption from the provisions of Rule 174 of the Central Excise Rules, 1944. Therefore, according to the Department, when the exemption was available the respondent was claiming to be manufacturer of customs pack falling within Chapter heading 9018.00 but when the product became liable to duty the respondent assessee did not file any declaration and took altogether a different stand that the process of manufacturing customs pack would not be covered within the definition of manufacture and therefore a new product does not come into existence and no excise duty could be levied. The assessee has claimed that they are only manufacturers of Heart Valve and ECG electrodes. The Commissioner of Central Excise & Customs after hearing the parties came to the conclusion that the process undertaken by the respondent assessee amounted to manufacture and a new product came into existence which was commercially known as `custom pack' and therefore attracted excise duty and he levied excise duty along with penalty. The said order of the Commissioner, Central Excise & Customs, was challenged by the assessee before the CESTAT, Mumbai. The Tribunal differed in its opinion. The Judicial Member was of the opinion that the product manufactured by the assessee amounted to a new product known commercially as `customs pack' and therefore excise duty and penalty was rightly levied whereas the Technical Member was of the opinion that it was nothing Page 3 of 5 O/TAXAP/1424/2006 JUDGMENT but packing goods manufactured by the respondent assessee and the packaging will not bring in a new product nor can be treated to be a manufacture of new product and therefore no excise duty or penalty was leviable. In view of the difference of opinion, the matter was referred to Third Member. The Third Member, Jyoti Balasundasundaram, after considering various case laws, came to the conclusion in its judgement dated 24.3.2006, in paragraph Nos. 2 and 3, which reads as follows:
"2. The common thread running through all these cases is the emergence of a new commercially different commodity, having a different name, character and use. However, in the present case, no new product emerges as result of cutting tubing with connectors, tubing with blood filter/oxygen filter and packing the same in ready to use condition for heart surgery, so as to hold the process amounting to manufacture and liability to duty.
3. In the light of the above discusions, I concur with the view of the ID. Member (Technical)."
The view of the Third Member was that no new product emerges as result of cutting tubing with connectors, tubing with blood filter/oxygen filter and packing the same in ready to use condition for heart surgery. Therefore, the Third Member held that the process does not amount to manufacture and no new commerce product comes into existence. Therefore, no excise duty was leviable. The Third Member concurred with the view taken by Member (Technical).
4. The said order of the Tribunal was challenged by the appellant before us. The appellant has placed reliance on the decision of the Apex Court in the case of FEDDERS LLLOYD CORPORATION LTD. VS. COMMISIONER OF CENTRAL EXCISE, Page 4 of 5 O/TAXAP/1424/2006 JUDGMENT MUMBAI reported in (2008) 2 SCC 643 wherein the definition of the word `manufacture' as laid down in Section 2(f) of the Central Excise Act has been considered and the law laid down by the Apex Court is clear that process will result in alteration or change in the fact leading to production of a commercially new article as a manufacture. In the instant case, the Tribunal has recorded its finding of fact that the product is only `pack' and no new product is manufactured by the respondent assessee and therefore no excise duty could be levied. Therefore, the decision of the Apex Court is no help to the appellant as only packaging of product is being done of the goods which are manufactured by the assessee.
5. For the aforesaid reasons, we do not find any merit in this appeal. We answer the question against the Department and in favour of the assessee. The appeal stands dismissed.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) (pkn) Page 5 of 5