DESH ROLLING MILLS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN these four appeals, filed by four appellants against four Order -in -Appeals, passed by the Commissioner (Appeals), the Common issue involved is whether exemption under Notification No. 1/93 -C.E., dated 28.02.1993 and Notification No. 214/86 -C.E. dated 02.04.1986 is available to the goods manufactured by them.

(2.) 1 Briefly stated the facts are that all the four Appellants manufactured untrimmed sheets/circles of copper, copper alloys on job work basis which were removed by them without payment of excise duty. The demand for duty of excise was confirmed by the Assistant Commissioner and Commissioner (Appeals). However, on appeal the Appellate Tribunal, in the case of Aggarwal Rolling Mills v. CCE, New Delhi - 1997 (93) E.L.T. 615 (T), remanded the matter to the adjudicating authority for de novo consideration in the light of the observations made and the law.

(3.) SHRI J.S. Aggarwal, ld. Advocate, submitted that the Appellants manufacture Hot Rolled Untrimmed Sheets/Circles of Copper/Copper alloys out of the raw -materials supplied by the principal manufacturer; that the Adjudicating Authority has gone beyond the terms of the remand order of the Appellate Tribunal; that in para 21 of the Tribunal's Order in Aggarwal Rolling Mills (supra), Tribunal has observed that "the benefit of the Notification No. 214/86 could not be denied to the appellants from the period it came into force and they had opted for the same subject to the fulfilment of the conditions and the procedure prescribed therein. The duty liability, if any, which may arise in the case of non fulfilment of the conditions prescribed in para 2 would lie on the supplier(s) of the raw material or semi -finished goods as the responsibility has been, explicitly cast on him as a principal manufacturer. The ld. DR is correct in pointing out that in normal course the responsibility under Excise Law is on the manufacturer (incl. Job workers), but once the Govt. has chosen to depart from this principle explicitly and made provisions to take care of the resultant situation by making a specific provision in the Notification No. 214/86, it is not the case law cited by the ld. DR but the plain language of the Notification which will have to be taken note of. "The ld. Advocate, further, submitted, that in spite of these clear observations by the Tribunal in the remand order both Adjudicating Authority and lower Appellate Authority have confirmed the demand against the Appellants for non -fulfilment of conditions specified in Notification No. 214/86 following the decision in the case of Jina Bakul Forge Pvt. Ltd v. CCE, Belgaum -1997 (93) E.L.T. 373; that in any case facts in present matters are distinguishable inasmuch as in that case the material which was received by Job worker was not covered by Rule 57F or Notification No. 214/86 challans; that in the present matters the goods for job work were being received under Proper Challans duly authenticated by the Department. He, further, mentioned that the Appellants have even surrendered their L -4 licences as the product manufactured by them was exempt from payment of Central Excise duty, under Notification No. 1/93 as amended by Notification No. 59/94 dated 01.03.1994. The ld. Advocate also submitted that intermediate goods coming into existence during the process of manufacture would not be subject to duty unless they satisfy the test of marketability as held by the Supreme Court in the case of CCE, Baroda v. United Phosphorus Ltd., 2000 (38) RLT 239 (SC); that it has been held by the Tribunal in the case of Lohia Sheet Products v. CCE, Ghaziabad - 1999 (35) RLT 453, that untrimmed cover sheets are not liable to duty as no evidence of their marketability had been produced by the Department. The ld. Counsel, therefore, contended that the products manufactured by the Appellants are not liable to excise duty, being not marketable. Finally, the ld. Advocate referred to the clarification given by the Principal Collector wherein it was clarified that product job rolled under Rule 57F(3), Notification No. 214/86 are not to be charged to excise duty in the hands of Job worker provided proper procedure is adopted as provided in the Central Excise Rules/relevant Notification. He mentioned that the clarification given by the Department is binding on the Central Excise officers and reliance was placed on the decision in the case of Paper Products Ltd. v. CCE -1999 (112) E.L.T. 765 (S.C.).