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98 EXCISE LAW TIMES [ Vol. 372

dutiability or otherwise of the ink. The sole contention of the department is that
the containers are of specific size and shapes, therefore, by simply re-
filled/relabelling ink into these containers, it became the part of the machinery. If
the said finding of the Commissioner however is taken as correct then empty
containers were procured by the appellant is already of a particular shape and
size and the appellant does not have changed the shape and size of the contain-
ers but simply refilled or relabelled the containers and such activity have no im-
pact on size and shapes of the containers, therefore, it cannot be said that the ap-
pellant has undertaken a manufacturing process. It is also submitted that relabel-
ling does not bring into existence a new commodity and does not result in any
change in nature or use or the character which remains the same irrespective of
relabelling. It is his submission that the Commissioner has dropped the demand
of duty on imported printer ink reservoir and printing ink cartridges wherein
relabelling was done and no appeal has been filed against the said order. He fur-
ther submits that the imported ink is classifiable under Chapter 32 and there is
no Chapter note to Chapter 32 for Heading 3215 deeming a process amounts to
manufacture. Since imported ink in bulk after being refilled/relabelled in the
containers remained ink only in which no manufacture is involved.
6. He further submits that classification proposed by the department
and the impugned order have several anomalies as there is no classification of
the impugned goods was sought in the show cause notice and during the per-
sonal hearing, the Commissioner has made altogether new case by proposing
classification of the impugned product. The Commissioner deviated from the
earlier stand and classified the goods under Heading 8443 99 60 of the Tariff. The
Commissioner committed an error by holding that classification of the goods
under sub-heading 8443 30 10 as parts accessories of the goods of Heading 8443
39. The adjudicating authority was uncertain of the classification of the goods
under which the duty demand has been raised and to change classification, bur-
den of proof lies on the department which the department has failed to dis-
charge. He further submits that the classification proposed under Tariff Item
8443 99 51 is ruled out as the impugned cartridges have no print head assembly.
Further the entry against Tariff Entry 8443 99 52 i.e. ink cartridges, without print-
ing assembly has been inserted only with effect from 20-5-2010. Prior to 20-5-
2010, the entry against Tariff Entry 8443 99 52 read as ink spray nozzle, which is
not the case here. Further the entry against 8443 99 52 is a sub-classification of the
entry tariff parts and accessories of goods of sub-headings 8443 31, 8443 32.
Therefore, in order to fit classification of the impugned products under tariff en-
try 8443 99 52, first it has to be satisfied that the impugned goods are parts and
accessories of goods of sub-headings 8443 31 or 8443 32. The entry against 8443
31 reads as Machines which perform two or more of the functions of printing,
copying or facsimile transmission, capable of connecting to an automatic data
processing machine or to a network which is not the case here inasmuch as the
use of the impugned products is never in those machines which have two or
more functions such as printing, copying of facsimile transmission. Further the
machines in which the products are used, are not connected to an automatic data
processing machine.
7. Learned Counsel further submits that in the impugned order the
Commissioner held that main printing machine is classifiable under sub-heading
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