VISHAL PACKAGING Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE facts leading to filing of miscellaneous application, stay application and appeal are, in brief, as under: -

(2.) SINCE none appeared for the appellant, Shri B.L. Narsimhan, Advocate, was directed by the Bench to act as Amicus Curie and explain the case. From the Department's side, Shri Jayant Sahay, ld. Departmental Representative presented the case. After hearing Shri B.L. Narsimhan, ld. Advocate as Amicus Curie and Shri Jayant Sahay, ld. DR, we find that there is no dispute about the nature of the activity of the appellant - making corrugated boxes from craft paper on job work basis. Craft paper is covered by Heading No. 4805 of the Tariff, and corrugated boxes are covered by Heading No. 4819 of the Tariff. Even the ld. DR agreed that making of corrugated boxes from craft paper would amount to manufacture. In view of this, we fail to understand as to how a senior officer of the rank of Addl. Commissioner has confirmed the demand of service tax against the appellant by treating their activities as Business Auxiliary services covered by Section 65(105)(zzb) read with Section 65(19) of 1994 Act, holding that the process carried out by the appellant does not amount to manufacture under Section 2(f) of the Central Excise Act. The order passed by the Addl. Commissioner shows his total ignorance to the Central Excise Law. It appears that the Additional Commissioner, in his anxiety to confirm the service tax demand made in the show cause notice put up before him for adjudication, did not realize that on the basis of his decision in this adjudication order that making of corrugated boxes from craft paper on job work basis does not amount to manufacture, all the corrugated box manufacturing unit manufacturing corrugated boxes from craft paper would claim that their activity would not attract excise duty. We are also surprised that the Commissioner (Appeals), instead of deciding the appeal on merits, as an Advocate representing the appellant had appeared before him, has chosen to dismiss the appeal by invoking Rule 5 of the Central Excise (Appeal) Rules, which pertains to the production of additional evidence. Considering the reply to the show cause notice and hearing the appellant when the original adjudicating authority had passed an ex parte order without waiting for the reply to the show cause notice cannot be treated as introduction of additional evidence. The impugned order, therefore, is a perverse order not sustainable at all. The same is set aside and the appeal is allowed. The stay application and the miscellaneous application filed along with appeal also stand disposed of.