Custom, Excise & Service Tax Tribunal
M/S Ghodawat Foods International Pvt. ... vs Commissioner Of Central Excise, ... on 9 January, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II Appeal No. E/645 & 1455/06 (Arising out of Order-in-Appeal No. P-II/414/2005 dated 19.12.2005 passed by the Commissioner of Central Excise & Customs (Appeals), Pune-II ). For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Ghodawat Foods International Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune-II Respondent Appearance: Shri J.N. Somaiya, Advocate for Appellant Shri V.K. Shastri, AC(AR) for Respondent CORAM: SHRI RAMESH NAIR, MEMBER (JUDICIAL) SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 09.01.2017 Date of Decision: 30.01.2017 ORDER NO. Per: Ramesh Nair
The case of the Department is that the activity of conversion of edible oil from tanker to retail pack and labeling is amount to manufacture and accordingly, the repacked refined edible oil is liable to duty.
2. Shri J.N. Somaiya, learned Counsel for the appellants submits that the issue is no more in dispute as in the appellants own case decided by this Tribunal vide Order No. A/ 90742/16/EB dated 01.09. 2016, wherein it has been held that repacking of RBB Palmolien Oil received in tanker in bulk and repacking them into smaller packs does not amount to manufacture. He further submits that the very same issue has been considered by this Tribunal in another case of Commissioner of Central Excise, Pune-II Vs. Anwar Oils 2016 (335) ELT 177 (Tri-Mum). He also placed reliance on the following judgment: -
(a) CCE Vs. M/s Amritlal Chemaux Ltd. 2015 (321) ELT 5 (SC)
(b) CCE Vs. Ammonia Supply Co. 2011 (6) TMI 482 CESTAT-MUM
(c) Ruchi Health Foods Ltd. 2007 (209) ELT 68 (Tri)
(d) Deepak Trading Co. 2008 (225) ELT 532 (Tri)
3. Shri V.K. Shashtri, learned AC (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have carefully considered the submissions made by both sides. The department has confirmed the demand holding the process of conversion of edible oil from tanker to retail pack is manufacture by applying the Chapter Note 4 to Chapter 15 of the Central Excise Act, 1944, which is reproduced below: -
4. In relation to products of sub-heading Nos. 1502.00, 1503.00, 1504.00 and 508.90, labeling or relabellig of containers and packing from bulk packs to retails packs or the adoption of any other treatment to render the product marketable to consumer, shall amount to manufacture. From the above chapter note, it is seen that if the goods are repacked from bulk pack to retail packs and also labelled then the activity shall amount to manufacture. In the facts of the present case, the edible oil received in the tanker was unloaded and then converted into retail pack and labelled. As per the judgments relied upon by the appellant, it has been consistently held that the conversion of the product from tanker to retail pack is not conversion of bulk packs to retail packs because the tanker in which goods are received is not bulk pack, therefore, one limb of the Chapter Note that packing from bulk pack to retail pack does not satisfy. Though there is an activity of labeling but as per the Chapter Note 4 prevailing at the relevant time, the activity of repacking from bulk pack to retail pack and also labeling both should be carried out in order to hold manufacture under Note 4 to the Chapter 15.
5. As discussed above, there is no activity of repacking from bulk packs to retail packs and only labeling alone is carried out, therefore, the activity does not amount to manufacture. The judgments cited by the appellant support the case of the appellant, particularly the Tribunals decision in the appellants own case. As per the above discussion and the support of the various judgments, we are of the view that the activities carried out by the appellant i.e. packing in retail pack of edible oil from tanker and labeling thereto does not amount to manufacture. Therefore, the impugned order is set aside and the appeals are allowed.
(Pronounced in Court on 30.01.2017) (Raju) (Ramesh Nair) Member (Technical) Member (Judicial) Sinha 4 Appeal No. E/645 & 1455/06