1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Central Excise Appeal No.25 of 2010 The Commissioner of Central Excise Raigad Commissionerate ..Appellant vs. M/s Positive Packaging Industries Ltd. ..Respondents Mr.R.V.Desai, Senior Counsel with Mr.R.B.Pardeshi for appellant Mr.P.K.Shetty for respondents. CORAM: V.C.DAGA AND K.K.TATED JJ 22nd March,2010 P.C. Perused appeal. 1 Heard the learned Senior Counsel appearing for the appellant and the learned Counsel for the respondents. 2 This appeal is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal 2 Bench at Mumbai whereby the appeal filed by the Revenue is rejected and the order passed by the Commissioner of Central Excise (Appeals) dated 6th February, 2007 is affirmed. 3 The factual matrix reveals that the show cause notice dated 31st May 1999 alleging contravention of the provisions of Rule 57 S2(b) of the Central Excise Rules, 1944 was issued to the petitioner for having cleared the printing cylinders under Rule 57S(7) of the Rules without payment of duty during the period May 1997 to November, 1998. 4 At the out set, Mr.R.V.Desai, learned Senior Counsel appearing for the Revenue fairly stated that so far as Rule 57S(2b) of the Central Excise Rules is concerned, the same is not applicable. However, in his submission, the act of re- engraving or printing cylinders constitute manufacture under Rule 57 S(7) of the Rules. 3 As such its removal without payment of duty was in clear violation of the Central Excise Rules. That is how Mr.Desai tried to justify the show cause notice and confirmation thereof. Mr.Desai tried to place reliance on the judgment of this Court in the case of Jupiter Engravers Vs. Union of India, 1993(68) E.L.T. 60(Bom)in support of his submission. In his submission, in the said judgment it has been held that engraving/re- engraving amounts to manufacture under sec. 2(f) of the Central Excise and Salt Act, 1944. 5 For contra the learned Counsel appearing for the respondents submits that printing cylinders are required to be engraved after their continuous use in manufacture of final product as the sharpness of the design gets affected. In his submission, the respondents have followed the procedure laid down under Rule 57 S of the 4 Central Excise Rules and had sent the cylinders for re-engraving which by no stretch of imagination can be said to be manufactured under the Central Excise Act or Rules. He reiterated that re-engraving did not constitute manufacture. In no way it contravened the Rule 57 S(2b) of the Central Excise Rules. 6 Having heard both the parties, the foundation of the show cause notice issued by the Revenue was under Rule 57 S(2b) of the Central Excise Rules. At no point of time the case sought to be made out by Mr.Desai was a subject matter of the show cause notice. As such it is not open for the revenue to justify their action based on the judgment of this Court in the case of Jupiter Engravers cited supra. In that case the subject matter related to job work. As against this, case in hand is not a case relating to the job work. As already stated the contention canvassed by 5 Mr. Desai cannot be considered on the touch stone of any contravention of Rule 57S(2b) of the Central Excise Rules as no opportunity on this ground was offered to the petitioners nor the show cause notice proceeded on this assumption. 7 In the above view of the matter the substantial question of law stands answered against the Revenue and in favour of the respondents. The appeal is, therefore, dismissed with no order as to costs. (K.K.TATED J.) (V.C.DAGA J.)