Page 215 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] ARIES DYECHEM INDUSTRIES v. COMMISSIONER OF CUSTOMS, AHMEDABAD 605

Beta Napthol supplied by the appellant is not on sale basis but only for the job
work purpose. We find that the adjudicating authority is heavily emphasized on
the invoice issued by the job worker and construed that since the job worker has
issued a sale invoice where under the VAT was paid, it is a transaction of sale of
goods. From the careful perusal of the said invoice, we find that the job worker
has considered the total value including the value of Beta Napthol but since the
Beta Napthol was given by the appellant to the job worker free of cost the value
of the said Beta Napthol has been reduced from the total value and their final
sale value does not include the value of Beta Napthol, therefore even as per the
invoice of the job worker there is no sale of Beta Napthol to the appellant. It is
obvious that when the appellant have not sold the Beta Napthol to the job work-
er there is no transfer of right in the property i.e. Beta Napthol from the appellant
to the job worker. Consequently question of sale by the job worker to the appel-
lant does not arise. The job worker also clearly mentioned while reducing the
value of Beta Napthol that “ Less : Beta Napthol supplied by you as per job work
Annexure-II challan……..” With this clear mention in the invoices of job worker
coupled with the returnable Annexure-II challan there is no doubt that the appel-
lant have not sold or transfer Beta Napthol to the job worker or to any other per-
son. Therefore, we have no hesitation to conclude that the transaction of the Beta
Napthol by the appellant to the job worker does not fall under the term either
“sale” or “transferred in other manner”. Therefore, in our considered view there
is no contravention of the condition attached to the Notification No. 93/2004-
Cus., dated 10-9-2004 and Notification No. 32/2005-Cus., dated 8-4-2005.
7. We further observed that in the appellant’s own case the same trans-
action has been endorsed as job work in the order of Commissioner (Appeals)
dated 21-9-2011 which has been accepted by the Revenue. The Adjudicating Au-
thority has brushed aside the said order not on merit but mentioning that the
order of the Commissioner (Appeals) is not binding on him. We find that once
the Commissioner (Appeals) has passed an order and the same was accepted by
the Revenue, the credence to the said order must be given unless the same is dis-
tinguished on merit.
8. We also see that even the Tribunal in the appellant’s own case re-
ported at 2010 (257) E.L.T. 113 (Tri. - Ahmd.) which was upheld by the Hon’ble
Gujarat High Court vide order, dated 19-6-2012 that the similar transaction
wherein the Beta Napthol was sent to job worker and the job worker returned the
processed goods under sale invoices has been considered as job work only. We
further find that as per the Hon’ble Supreme Court judgment in the case of Pres-
tige Engineering (India) Ltd. it was held that even if a minor items used by the job
worker, it would not detract it being a job work an example given in the said
judgment that if a tailor stitching shirt or suit out of the cloth supplied by his cus-
tomers he may use his own buttons and threads and lining cloth and such an
activity would amount to job work. In the present case also the appellant have
supplied the principal raw material i.e. Beta Napthol and some minor items were
used by the job worker, therefore, in the light of the above Hon’ble Supreme
Court judgment the processing by the job worker will remain as job work.
9. In an identical case of Tetra Pak (I) Ltd. (supra) dealing with the duty
free imported goods under DEEC scheme the Tribunal-Mumbai clearly held that
advance license holder cannot be prohibited from outsourcing goods imported
duty free for manufacturing to other persons even in the said case the goods im-
ported duty free under DEEC scheme was sold to job worker on cost basis and
EXCISE LAW TIMES  15th May 2020  215