ASHOK BHAN, J. - (1.) ASSESSEE has filed these appeals under section 35L(b) of the Central Excise Act, 1944 (hereinafter called the 'Act') against the final order no.1419-1420/Cal/2000 dated 31st August 2000 in appeal no. E/R-156-157/99 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta (hereinafter called the Tribunal) whereby the Tribunal has dismissed the appeal filed by the appellant herein.
(2.) ACTING on the basis of intelligence, a team of officers from CPO of Calcutta I Central Excise Commissionerate, Headquarters visited the factory-cum-office of the appellant on 5th September, 1997 and conducted a search operation. Search resulted in seizure of 3 files, 9700 pieces of Philips Ultra cleaner, 500 pieces of degreasing & cleansing fluid, 700 pieces of Switch cleaning oil all bearing brand name of Philips. These were detained and later seized on 9th February, 1998. Also, some 13 files belonging to M/s. T. Paul & Sons were tendered by the partner of the appellant firm. Certain other documents were also handed over to/seized by the raiding party. On the basis of the statements made by Shri Arun Kanti Paul partner of the appellant and other records recovered from the said premises on the day of search, it was found that the orders were being received from M/s. Philips India Ltd., by M/s. T. Paul & Sons and the same were executed by the appellant on the basis of arrangement with M/s. T. Paul & Sons to the effect that the appellant gets a job charge of paise 0.20 per 50 ml. bottle of the said product. The price at which M/s. T. Paul & Sons raised bills to M/s. Philips India Ltd. is controlled by M/s. Philips India Ltd. and it appears from the cost sheet given in the statement of Shri Arun Kanti Paul that M/s. Philips India Ltd., had allowed a profit of 10%. The raw materials and packing materials supplied by M/s. T. Paul & Sons was being received directly at the factory premises of the appellant and the dispatch of the said products was directly from 298, Rabindra Sarani, Calcutta 700 073 to the consignment agent of M/s. Philips India Ltd. The goods received were filtered and put into 50 ml. plastic container by the appellant both manually and mechanically at its factory premises. After sealing, bottles were pasted with Philips Labels & holograms. Multi-colour holograms were received directly from M/s. Philips India Ltd. Samples of seized goods were got tested from Departmental Chemical Laboratory at Customs House, Calcutta. The report of the Chemical Examiner was that Audio Tape Head Cleaner is in the form of colour less liquid and has the characteristics of methanol. Similarly, for Degreasing Cleansing Fluid, the report was that it is in the form of colour less transparent liquid and has characteristics of iso-prophyle alcohol. The sample of Switch Cleaning is in the form of colour less transparent liquid containing mixture of liquid hydrocarbon.
(3.) ON 18th February, 1998, a show cause notice was issued to the appellant alleging therein that the activities carried on by the appellant amounted to manufacture and the products being filtered and repacked were classifiable under entry 3402.90. The larger period of limitation was also invoked under the proviso to Section 11A on the ground that the appellant was guilty of fraud, concealment, etc. with a view to evade the payment of excise duty. Assessee filed detailed reply to the show cause notice explaining that the activities carried on by the appellant did not amount to manufacture and that the classification proposed by the department was incorrect. Various other contentions on limitations as well as on merits were raised. According to the appellant, during the said period, the appellant worked as a job worker undertaking filtering, repacking and labeling the materials supplied to it and the same would not amount to manufacture.;