Page 48 - ELT_15th May 2020_VOL 372_Part 4th

A140 EXCISE LAW TIMES [ Vol. 372

The Appellate Tribunal in its impugned order had held by a majority of
2-1 that consequent to amendment in Chapter Note 3 of Chapter 18 of Central
Excise Tariff in Budget of 2008 by replacing word ‘and’ with ‘or’ in said note,
activity of mere labelling or re-labelling even without re-packing amounting to
manufacture of goods. Accordingly activity of putting additional labels was held
as amounting to manufacture and assessee was held eligible to avail Cenvat
credit on duty paid and also entitled to rebate on export of these goods.
2. Majority view rejected Revenue’s contention that mere activity of la-
belling without enhancement of marketability would not amount to manufac-
ture. It was held that Note 3 of Chapter 18 of Central Excise Tariff details three
different activities viz. (i) labelling or relabelling (ii) re-packing and (iii) any other
activity enhancing marketability of product. Thus activity of labelling or relabel-
ling is an independent entry and enhancement of marketability is not a pre-
requisite to make the activity amounting to manufacture.
3. The minority view was that mere activity of relabelling of already
labelled product would not amount to manufacture and hence assessee was not
entitled to Cenvat credit or rebate on export of relabelled product.
REPRESENTED BY : Mr. B. Krishna Prasad, AOR, Mr. Rupesh Kumar and
Mr. Shamik Sanjanwala, Advocates, for the Appellant.
Mr. Rahul Gupta, AOR and Ms. Renuka Sahu,
Advocate, for the Respondent.
(1) Production capacity based duty — Rule 5 of Hot Re-
rolling Mills Annual Capacity Determination Rules,
1997, whether ultra vires Excise Section 3A?
(2) Production capacity based duty for the period prior to
omission of Excise Section 3A and Rules framed
thereunder, whether can be recovered after such
omission?
The Supreme Court Bench comprising Hon’ble Mr. Justice Rohinton Fali
Nariman, Hon’ble Mr. Justice Aniruddha Bose and Hon’ble Mr. Justice V. Rama-
subramanian on 5-12-2019 answered the reference in the Civil Appeal No. 7823
of 2014 with C.A. Nos. 7824 & 7825 of 2014, SLP (C) Nos. 16445 of 2010, 2014 of
2009, 34051 of 2017, T.C. (C) Nos. 20, 22-24 & 34 of 2010, T.C. (C) Nos. 1-5 of 2011,
106 of 2015 and T.P. (C) Nos. 419, 691 & 1200 of 2016. The C.A. Nos. 7823, 7824
and 7825 of 2014 were filed by Bhuwalka Steel Industries Ltd. against the Judg-
ment and Order dated 27-9-2013 of Karnataka High Court in Writ Appeal No.
315 of 2006 as reported in 2015 (330) E.L.T. 138 (Kar.) (Meenakshi Steel Re-rolling
Mills v. Union of India). SLP (C) No. 34051 of 2017 was filed by Jammu Casting
Pvt. Ltd. against the Judgment and Order dated 10-8-2017 of Jammu and Kash-
mir High Court in LPAOW No. 78 of 2010 and M.P. No. 113 of 2010 as reported
in 2018 (360) E.L.T. 282 (J & K) (Jammu Casting Pvt. Ltd. v. Union of India). While
answering the reference, the Supreme Court passed the following order :
“(1) The present reference arises from a judgment of the Division
Bench of this Court reported as Bhuwalka Steel Industries Limited and Another
v. Union of India and Others, (2017) 5 SCC 598. The question before the Court
was set out as follows :-

EXCISE LAW TIMES  15th May 2020  48