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These two appeals are filed by the Revenue against Order-in-Appeal No. P-II/BKS/263-264/2005 dated 31.5.2005 passed by the Commissioner of Central Excise (Appeals), Pune-II, aggrieved by the fact that the first appellate authority has set aside the Order in Original by which the adjudicating authority has confirmed the demand of duty along with interest and also imposed penalties holding that the respondent is engaged in the manufacture of edible oil which are branded as they repacked in the different quantity pack of edible oil from tanker to small containers.

2. The learned AR would submit that there is no dispute as to the facts that the respondent undertook repacking activity of various types of edible oil into retails containers with brand name and has repacked the same from the tankers. He would draw our attention to Note 4 of Chapter 15, to submit that the said note created deemed fiction of manufacturing with labeling or relabeling of containers and repacking from bulk packs to retail packs would amount to manufacture. He would submit that the respondent has adopted the treatment of rendering the product marketable by repacking from tanker to retail packs. He would also submit that the first appellate authority has incorrectly relied upon the judgment of Commissioner of Central Excise, New Delhi Vs. Ammonia Supply Co. - 2011 (6) TMI 482-CESTAT-MUM.

6. We find that the Chapter Note 4 of Chapter 15 in the same words as Chapter Note 11 of Chapter 29 made fiction of repacking/re-labeling as to be deemed manufacture. The said Chapter Note 11 of Chapter 29, was being considered by the Apex Court in the case of Amritlal Chemaux (supra). Respectfully, we reproduce the entire judgment: -

There are three products involved in the present appeal and the question is as to whether the process undertaken by the respondent-assessee in these products amounted to manufacture or not. The products are various dyes & dye bases, napthols & fast bases, and chrome pigments. They fall in Chapter 29 and Chapter 32 of the Central Excise Tariff Act, 1985 (hereinafter referred to as Act) respectively. It is not in dispute that the assessee is not the manufacturer of these products. It buys the same from a manufacturer in bulk quantities in bulk packing. Thereafter, some process is undertaken thereupon, as noted hereinafter and that has given rise to the dispute as to whether such a process amounts to manufacture or not. The process is of repacking and/or labelling. It is thus, an admitted case that the assessee is not a manufacturer in traditional sense. However, by virtue of Chapter Note 11 of Chapter 29 and Chapter Note 3 of Chapter 32 of the Act, which gives extended meaning to manufacture by creating a fiction, the appellant wants to rope in the respondent-assessee under the aforesaid Chapter Notes. The two chapter notes, viz., Chapter Note 11 of Chapter 29 and Chapter Note 3 of Chapter 32 are identically worded and read as under :-
2.?It was the endeavour of Mr. K. Radhakrishnan, learned senior counsel appearing for the appellant, to argue that even if one of the two processes, viz., labelling or relabelling of containers or for that matter, repacking from bulk to retail packs is undertaken, the same should be treated as manufacture. To put it otherwise, he wanted us to read the word and not conjunctively but disjunctively. We are not impressed with this argument of Mr. Radhakrishnan. It is clear from the plain language of the aforesaid Chapter Notes which use both the expression or as well as and at different places. Thus, by using the two expressions, the intention of the legislature is manifest that insofar as the process of label or relabelling of containers is concerned, it would amount to manufacture only if the other condition, viz., repacking from bulk to retail pack is also satisfied. The aforesaid view gains credence from other fact, i.e., where the second process is treated as manufacture, viz., adoption of any other treatment to render the product marketable to the consumer, the expression any other treatment and that too, with intention to render it marketable clearly shows that insofar first part is concerned, both the conditions have to be satisfied.