Tankers cannot be termed as bulk packs and therefore the activity of transferring the goods from tankers into smaller drums cannot be said to be covered by the said chapter note 10.
CESTAT, MUMBAI BENCH
JPB Chemical Industries (P.) Ltd.
Commissioner of Central Excise, Belapur
AND S.S. GARG, JUDICIAL MEMBER
ORDER NOS. A/2835-3837/2015/EB
APPEAL NOS. E/4123 & 4124/2005 & E/3374/2006-MUM.
AUGUST 19, 2015
Suresh N. Niratkar, Consultant for the Appellant. Sanjay Hasija, Supdt. (AR) for the Respondent.
P.K. Jain, Technical Member – The brief facts of the case are that the appellants are receiving certain chemicals in tanker lorries. After receipt of the said goods there are unloaded in carboys/drums of different capacities. The said drum and capacity are thereafter labelled and the same are sold to various customers. The chemicals in question are classifiable under Chapter 28/29. Revenue’s case is that in view of chapter note 10 to chapter 28 and similar notes in other chapters, the activity carried out by the appellant would amount to manufacture. Accordingly, a demand notice was issued to the appellant which was adjudicated vide order dated 08.08.2003. Aggrieved by the said order, appellant filed appeal before the Commissioner (Appeals) who vide order dated 29.07.2005 rejected the appeal of the appellant. Aggrieved by the said order, the appellant is before us.
2. Ld. counsel for the appellant submitted that they are not doing the repacking from bulk pack to retail pack and labelling them. He submitted that what they are doing is the first time packing. Receipt of the chemicals in tanker lorries cannot be considered as a bulk packing. This is only mode of transport of liquid chemicals. Ld. counsel further submitted Boardcircular no. 910/30/2009-CX, dated 16.12.2009 as clarification regarding labelling and repacking after the amendment of the relevant Chapter note with effect from 01.03.2008. It was further submitted that in para 2,3,and 4 of the said circular it is clear that unloading the goods from tanker lorry into drums/carboy is not the same as repacking the goods from bulk pack to retail pack, therefore such an activity will not amount to manufacture.
3. Ld. AR on the other hand, submitted that Board vide circular no. 342/58/97-CX, dated 08.10.1997 has clarified that packing of the goods from bulk to retail will amount to manufacture. Further, in the present case, the appellant have done the labelling. Moreover, the said activity has been carried out in the absence of customer and as clarified in the said clarification, such activity will amount to manufacture. Ld. AR also submitted the following case laws in support of his contention.
|(1)||Abdos Trading Co. (P.) Ltd. v. CCE 2007 taxmann.com 1392 (Kol. – CESTAT)|
|(2)||Dewas Fabrics Ltd. v. CCE 2015 (317) ELT 610 (Tri. – Delhi)|
|(3)||Air Liquide North India (P.) Ltd. v. CCE 2011 (271) ELT 321 (SC)|
|(4)||Nickunj Shah v. CC [Appeal Nos. C/21, 22 & 43/2010, dated 24-10-2014]|
|(5)||Hansa Gosalia v. CCE 2013 (289) ELT 266 (Bom.)|
4. We have considered the submissions made by both sides.
5. We find that the Board vide circular 910/30/2009-CX, dated 16.12.2009 has clarified the position after the amendment in the relevant chapter notes as under:—
“2. Whether an operation amounts to repacking from bulk packs to retail packs or not, is a question to be decided on facts. However before examining the implication of the substitution of word ‘and’ by or, it is necessary to examine whether the activity itself is covered by term repacking from bulk packs to retail packs. Hence the first issue which needs to be decided is whether the container/lorry tanker can be considered as bulk pack.
3. Tribunal has in the case of Ammonia Supply Co. v. CCE 2001 taxmann.com 1557 (CEGAT – New Delhi), held that as per Note quoted above, labelling or re-labelling of the container should take place at a time when the goods are packed from bulk packs to retail packs. The assessee was not getting Ammonia in bulk packs. They were getting it in tankers. Ammonia gas brought in tankers can never be termed as brought in bulk packs. So the assessee was not repacking the goods from bulk packs to retail packs. Accordingly the activity undertaken by the assessee in filling the smaller container from bulk container namely tankers can never fall within the fiction of manufacture as envisaged by Note 10 quoted above.
4. Therefore the tankers cannot be termed as bulk packs and therefore the activity of transferring the goods from tankers into smaller drums cannot be said to be covered by the said chapter note 10.”
6. We find that the present case is squarely covered by the above clarification of the Board and this Tribunal has also taken similar view in large number of cases starting from Ammonia Supply Co. (supra) and in view of the consistent stand of the Tribunal and accordingly, all the appeals are allowed.