IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 OP.No. 6138 of 2001(E) ---------------------- PETITIONER(S): --------------- SOUTHERN REFINERIES LTD., KOWDIAR P.O., TRIVANDRUM, REP. BY ITS MANAGING DIRECTOR, A.V.JOHN. BY ADV. SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI-01. 2. THE COMMISSIONER OF CENTRAL EXCISE (APPEALS), COCHIN-I, COMMISSIONERATE, C.R.BUILDINGS, I.S.PRESS ROAD, COCHIN-18. 3. THE DY. COMMISSIONER OF CENTRAL EXCISE, CENTRAL EXCISE DIVISION, NEAR PRESS CLUB, TRIVANDRUM-1. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 6138/01. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER OF R3 DTD.31.7.2000. P2. COPY OF THE ORDER OF R2 DTD.19.1.2001. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 6138 of 2001 ================== Dated this the 9th day of February, 2009 J U D G M E N T The petitioner is engaged in the business of re-processing de-graded lubricating oil and selling it. Till the year 2000, such re- processing of de-graded lubricating oil was held not to involve a manufacturing process by various decisions of the courts and therefore, no excise duty was payable on the re-processed lubricating oil manufactured by the petitioner. But by Finance Act 2000, Schedule to the Central Excise Tariff Act, 1985 was amened by introducing a Chapter Note to Chapter 27 thus: '9. In relation to lubricating oils and lubricating preparations of heading No.27.10. Labelling or relabeling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer shall amount to “manufacture.”' In the Central Excise Act the word “manufacture” is defined thus: '(f) “manufacture” includes any process,- (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1895 (5 of 1986) as amounting to manufacture, and the word “manufacture” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account.' Thereafter, the Central Excise Department started taking the stand o.p.6138/01 2 that in view of the Chapter Note added, the re-processing of de-graded lubricating oil would also amount to manufacture on the ground that the process is for making the product marketable and, therefore, excise duty is payable by the petitioner. Ext.P1 order was passed in that regard. The petitioner filed appeal before the Commissioner of Central Excise and Customs (Appeals), which was dismissed by Ext.P2. Although the petitioner filed appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore, as Appeal No.E/164/2001, the petitioner chose to file this original petition to challenge the constitutional validity of the Chapter Note introduced by the Finance Act, 2000 since that could be done only in a writ petition. However, the petitioner reserves their right to pursue that question in a more appropriate case. They would be now satisfied with a direction to the CESTAT, Bangalore, to dispose of appeal No.E/164/01 expeditiously. The learned Standing Counsel appearing for the Central Excise Department is also keen to get the appeal disposed of since, according to him, several crores of rupees are being held up because of the pendency of similar appeals before various authorities and it would be in the interest of the Department also to have the appeal disposed of either way finally. In view of the consensuses of opinion, I dispose of this original petition with a direction to the CESTAT, o.p.6138/01 3 Bangalore, to dispose of Appeal No.E/164/2001, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The interim order passed in this original petition shall continue to be in force till the appeal is disposed of. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================= O.P.No. 6138 of 2001-E ================= J U D G M E N T 9th February, 2009