CCE, GUNTUR Vs. WINFIELD CHEMICALS INDIA

JUDGEMENT

(1.) THESE are two supplementary appeals field by Revenue along with application for Condonation of Dely and stay applications seeking stay of the operation of the Order -in -Appeal NO. 31/2000 (G) (D) dated 24.3.2000 by which the Commissioner (Appeals) applied the CBEC order No. 40/20/95 -Cx. dated 27.7.95 issued under Section 37B of CE Act 1944 in which it was ordered that additional of chemicals and other ingredients like innert carriers/solvents and also surface active dispersing and stabilising agents to pesticidal chemicals in highly concentrated form would amount to "manufacture" within the meaning of Section 2(f) of the Central Excise and Salt Act, 1944. It was prayed by the appellants before him that in terms of the said CBEC's order, the Assistant Commissioner's Order -in -Original requires to be set aside and remanded to the Assistant Commissioner for de novo consideration for a decision following the Section 35B order of the CBEC as referred by them. The appeal before the Commissioner had been field by the department. However,the respondents brought to the notice of the commissioner (Appeals) the judgment of the Southern Bench in the case of Associated Pesticides Vs. CCE Guntur as reported in 2000 (115) ELT 561 in which a decision was taken that diluting with solvents and addition of chemicals like stabilising and dispersing agents, innert carriers and packing thereon does not amount to "manufacture" prior to introduction of Note 2 to Chapter 38 of CET 1985 w.e.f. 23.7.96. The tribunal while holding this view took into consideration the earlier judgment rendered in the case of Markfed Ltd. Vs. CCE [1994 (50) ECR 417] which acquired finality by Revenue not filing any appeal challenging the same before the Apex Court. The Tribunal also took into consideration the judgment rendered by Gujrat and Delhi High Courts in (a) Indichem vs. UOI [1996 (88) ELT 35 (Guj.)] and (b) Kisan Chemicals Vs. UOI [1996 (88) ELT 648 (Del.)] which endorsed the decision of the Tribunal in the Markfed case cited supra and struck down the Board's order dated 27.7.95. In view of these judgment, the Commissioner (Appeals) upheld the order passed by the Assistant Commissioner and dismissed the departmental appeals. Hence the revenue has filed these appeals along with COD application and stay applications.

(2.) RESPONDENTS were served notices through the Commissioner. Counsel for the respondents Shri V.J. Sankaram has sent a fax stating that the issue having been decided by the Tribunal's order No. 1889 -1903/99 dated 27.7.9 in the respondent's own case arising from the same order and reported in 2000 (115) ELT 651, therefore there is no need to admit the appeals and has prayed for dismissal. The counsel has sought for order on merits.

(3.) HEARD Ld. DR.