IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN C.M.A.No.111 of 2008 The Commissioner of Central Excise Pondicherry Commissionerate No.1, Goubert Avenue, Beach Road Pondicherry-605 001. .. Appellant Cause title accepted vide order of Court dated 20.12.2007 made in M.P.No.1 of 2007 in C.M.A.SR.No. 10099 of 2004. versus 1. M/s.Sunco Rubbers Ltd. PIPDIC Industrial Estate Mettupalayam Pondicherry. 2. Customs, Excise and Service Tax Appellate Tribunal, Shastri Bhavan Annexe, 1st Floor No.26, Haddows Road Chennai-600 006. .. Respondents ----- PRAYER: Civil Miscellaneous Appeal filed under Section 35-G of the Central Excise Act, 1944, against the Final Order No.206 of 2004 dated 5.3.2004 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. ----- For appellant : Mr.S.Udayakumar Senior Central Government Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J.) The Commissioner of Central Excise has filed this appeal under Section 35-G of the Central Excise Act, 1944, assailing the correctness of the order of the CESTAT, Chennai, in Final Order No.206 of 2004 dated 5.3.2004. 2. The facts of the case proceed as follows: The respondent had received raw materials like masticated rubber and carbon black etc. from M/s.Taurus Industrial Corporation and M/s.Jayton Polymers under Rule 57 F(2), now Rule 57F(3) of the Customs Excise Rules, 1944 for further processing and return to the suppliers. After processing, the processed pre-cured tread rubber were cleared to the raw material suppliers under Rule 57F(2) challans. The Department was of the view that the goods processed at the premises of the respondent were fully manufactured goods they should have paid the full duty while clearing. Since this was not done, the Department viewed that the respondent had contravened the provisions of Rule 57F(2) [now Rule 57F(3)] with an intent to evade payment of duty. A show cause notice was issued proposing to demand duty and imposing penalty, which culminated in an order of adjudication passed by the Commissioner, by which, the Commissioner has demanded duty and further imposed penalty also. That order was carried on appeal to the CESTAT. The CESTAT, after taking into consideration the various process of manufacturing activities and having regard to the statutory provisions under Rule 57F(2) and Rule 57F(3) and the definition of the term "manufacture" under Section 2(f) of the Central Excise Act and further in the light of the decision of the Supreme Court in the case of PRESTIGE ENGINEERING (INDIA) LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, MEERUT reported in 1994 (73) ELT 497, has held that the goods in the present case have attained the stage of fully manufactured goods at the hands of the raw material suppliers i.e., primary manufacturer and not at the hands of the job worker, and as such, the contrary view taken by the Department is not legally correct. The said order is canvassed in appeal by formulating the following substantial questions of law: (a) Whether the Tribunal is correct in holding that the peripheral process such as deflashing, checking the goods with vernier, inspection of goods, checking the hardness, are manufacturing process as required under Rule 57 F(2) [Rule 57F(3)] of the Central Excise Rules, 1944? https://hcservices.ecourts.gov.in/hcservices/ (b) Whether the Tribunal is correct in not considering the contradicting statement given before the adjudicating authority and misrepresentation of facts placed before Tribunal without placing any evidence to prove it? (c) Whether the Tribunal is correct in ordering that the goods have attained the stage of fully manufactured goods when there is contradiction in the assessee's statements made before adjudicating authority and Tribunal and when a party to the dispute is approaching the Tribunal without concrete evidence and proper reasons to counter the order of the adjudicating authority? (d) Whether the Tribunal is correct in relying on the Larger Bench decision in the case of M.Tex & Anr Vs. Commissioner of Central Excise, Jaipur, which totally deals with duty liability of processed fabrics and does not appear to be applicable to the facts of the case? 3. Mr.S.Udayakumar, learned Senior Central Government Standing Counsel appearing for the appellant, reiterated the case of the Department that the modvat availing assessee should undertake some process in their factory premises in order to avail modvat credit. In the case on hand, the raw materials supplier had availed modvat credit on the raw materials and sent them for job work for completing certain process on the intermediate products. This facility of sending modvat availed raw materials to job work is intended to facilitate the manufacturer who does not have all the manufacturing facility to produce the final product. This is the requirement of Rule 57F (2) of the Customs Excise Rule 1944. The assessee violated the condition of the rule. This factum is totally lost sight of by the Tribunal. As such the order of the Tribunal is liable to be set aside. 4. We heard the argument of the learned counsel and perused the material on record, particularly the order of the CESTAT. 5. The various activities/process carried out by the primary manufacturer (raw material supplier) and the job worker have been clearly stated in the order of the CESTAT, which are as follows: "(i) Raw materials such as masticated rubber with PBR, carbon black stearic acid and anti oxidents are removed to the job worker under Rule 57F(2)/57F(3)(b). (ii) By various process, such as mixing the raw materials in a kneader at 145 to 160º https://hcservices.ecourts.gov.in/hcservices/ centigrade for 10-12 minutes and cooling it in water for about 24 hours, the master batch is prepared at the premises of the job worker. (iii) The master batch is then again mixed in the kneader for 3 to 4 minutes and again cooled in water and kept for 24 hours for aging at the hands of the job worker. This process is called PT batch. This is also done by the job worker. (iv) The PT batch is returned to the raw material suppliers (primary manufacturer) who have supplied the various raw materials/semi finished goods. (v) The final batch i.e. mixing these sheets with sulphur and accelerators, are done at hands of the raw material suppliers at their premises. (vi) Extruding of the above final batch and cutting the strips to the specific lengths is also done at the premises of the raw material suppliers. (vii) The extruded strips are again sent to the job worker for further processing for heating on a matrix holder. (viii) After the heating is over at the hands of the job worker, the next process is sanding i.e., the bottom side of the tread rubber is roughened to get the buffed surface of the tyre. After this process is over, at the hands of the job worker, the tread rubber strips are returned to the raw material supplier under Rule 57F(2)/(57F(3). (ix) During the process of manufacture of tread rubber on the matrix, excess rubber flows out of the mould and as a result both the sides of the strip would have excess flattened rubber ends called flash. The top portion of the tread would have excess rubber in the form of air vents sticking out. This is to be deflashed by cutting and trimming and this is done by the raw material supplier. (x) After the de-flashing is over at the hands of the raw material suppliers, the vulcanized strips are subjected to testing for hardness and also for thickness with verniers to ensure uniformity and this is done by the raw material suppliers. It is after this process, the strips are inspected for final https://hcservices.ecourts.gov.in/hcservices/ despatch to the customers by the primary manufacturers (raw material suppliers). " 6. From the above activities, it is evident that the goods are made ready for marketing only after the goods are subjected to deflashing, testing and inspection at the hands of the raw material suppliers, i.e., primary manufacturers. The Tribunal has also found on facts that the raw materials required for manufacture of strips tyres were supplied by the primary manufacturer (raw material supplier) and the job worker has contributed his skills with the help of his tools for various processing and collected only job charges. The major processing of the raw material was done by the job worker and certain process were done at the hands of the suppliers of raw materials to make the manufacturing process complete. 7. Having regard to the activities above-referred to, the Tribunal has rendered a factual finding that it could not be said that the manufacturing activity has been fully completed at the hands of the job worker. In order to support their view, the Tribunal has also taken the aid of the ratio of the Supreme Court judgment in the case of PRESTIGE ENGINEERING (INDIA) LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, MEERUT reported in 1994 (73) ELT 497, wherein, the Supreme Court has categorically held that once an expression is defined in the Act, that expression wherever it occurs in the Act, Rules or Notifications issued thereunder, should be understood in the same sense. Indubitably, the definition of "manufacture" in Section 2(f) endows a wider content to the expression; several processes which would not ordinarily be understood as amounting to manufacturing are specifically included within its ambit. Clauses (i) and (ii) of the definition make this aspect clear beyond any doubt. The Apex Court further observed that it must be remembered that even the unamended definition of "manufacture" included within the ambit of the definition several processes and activities which would not otherwise have amounted to manufacture. The Apex Court ultimately held that any activity which is incidental or ancillary to the manufacture of the final product would be regarded as a manufacturing activity. If the ratio of the said decision of the Supreme Court is applied to the present case, we are of the view that the Tribunal has come to the correct conclusion that the goods received back by the raw materials supplier from the job worker, cannot be regarded as fully manufactured goods, and as such, the ultimate conclusion reached by the Tribunal having regard to the activity undertaken by the respondent are to be regarded as a manufacturing process, as required under under Rule 57F(2)/57F (3) of the Central Excise Rules, 1944. https://hcservices.ecourts.gov.in/hcservices/ 8. On an analysis of the entire order of the Tribunal, we are of the view that the Tribunal has reached the correct conclusion. Hence, we do not find any question of law, much less substantial question of law arising in this case, so as to entertain this appeal. Accordingly, this Civil Miscellaneous Appeal is dismissed. There will be no order as to costs. ksv/mf Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Commissioner of Central Excise Pondicherry Commissionerate No.1, Goubert Avenue, Beach Road Pondicherry-605 001. 2. The Customs, Excise and Service Tax Appellate Tribunal, Shastri Bhavan Annexe, 1st Floor No.26, Haddows Road Chennai-600 006. + 1 cc to Mr. S. Udayakumar Sr Central Govt Standing Counsel SR No. 3447 C.M.A.No.111 of 2008 AKR(CO) SR/8.2.2008 https://hcservices.ecourts.gov.in/hcservices/