M.N. Roy, J. - (1.) Since common questions of law and fact arose in the appeal being F.M.A. No. 4198 of 1985 and other appeals being F.M.A. No, 95 and F.M.A. No. 96 of 1986 and all the appeals excepting the one in F.M.A.T. No. 2338 of 1983 which was against the determination of D.K. Sen, were directed against the determinations made by Suhas Chandra Sen, J. in the respective civil rules on diverse dates, they were heard together by consent of parties. The other assigned appeal being F.M.A.T. No. 2338 of 1983, which arose out of the judgment and order dated 14th July, 1983, passed in C.O. No. 15368(W) of 1982, was also heard immediately after the first group of appeals and along with them, as similar questions of fact and law, were involved for determination.
(2.) Admittedly, the Central Excises And Salt Act, 1944 (hereinafter referred to as the said Act) had undergone an amendment in or about March 1986 which and thereby "packaging" has been included within the excisibility of goods including "tea" which is involved in these proceedings. It is also an admitted fact that prior to such incorporation by way of amendment excise duty was leviable under package tea and there was no separate duties leviable for manufactured tea and package tea. Sec. 3 of the said Act was and still is the charging Sec. and deals with duties specified in the First Schedule which is to be levied and under Sub -section (1) thereunder. The said Sec. postulates that there shall be levied and collected in such manner as may be prescribed duties of excise excisable on all goods other than salt which are produced or manufactured in India, and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985 provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured, - - (i) in a free trade zone and brought to any other place in India, or (ii) by a hundred per cent export -oriented undertaking and allowed to be sold in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under Sec. 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value, the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). Explanation 1. _______________________________ Explanation 2. ______________________________ (1A) ___________________________________ (2) _________________________________ (3) Different tariff values may be fixed - - (a) for different classes or descriptions of the same excisable goods; or (b) for excisable goods of the same class or description - - (i) produced or manufactured by different classes of producers or manufacturers; or (ii) sold to different classes of buyers: Provided that in fixing different tariff values in respect of excisable goods falling under Sub -clause (i) or Sub -clause (ii), regard shall be had to the sale prices charged by the different classes of producers or manufacturers or, as the case may be, the normal practice of the wholesale trade in such goods. From the statements as incorporated hereinafter, it would appear that the case of the petitioners was that they bought duty -paid tea and packed them. Since tax has been sought to be levied on such packaging, Mr. Gupta, appearing in support of the appeals, claimed that such levy or tax was improper as packaging of tea as in these cases, would not come within the purview or definition of manufacture or manufacturing process. Prior to the incorporation of the amendment in March 1986, the other material particulars which would be indicated hereafter, "manufacture" under Sec. 2(f) of the said Act included any process (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Sec. or chapter notes of the Schedule to the Central Excise Tariff Act, 1985 as amounting to manufacture; and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account and after the amendment as substituted with effect from 28th February, 1986 the same includes any process incidental or ancillary to the completion of a manufactured product; and (i) in relation to tobacco, includes the preparation of cigarette, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco or snuff; and (ii) in relation to salt, includes collection, removal, preparation, steeping, evaporation, boiling or any one or more of these processes, the separation or purification of salt obtained in the manufacture of saltpetre, the separation of salt from earth or other substance so as to produce elementary salt, and the excavation or removal of natural saline deposits of efflorescence; (iia) in relation to goods comprised in item No. 3A of the First Schedule, includes the labelling or relabelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer; (iii) in relation to patent or proprietary medicines as defined in item No. 14E of the First Schedule and in relation to cosmetics and toilet preparations as defined in item No. 14F of that Schedule, includes the conversion of powder into tablets or capsules, the labelling or re -labelling of containers intended for consumers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer; (iv) in relation to goods comprised in item No. 18A of the First Schedule, including sizing, beaming, warping, wrapping, winding or reeling or any one more of these processes, or the conversion of any form of the said goods into another from of such goods.
(3.) Item 3 of the First Schedule under the said Act included and the same defined "tea" as including all varieties of the product known commercially as tea, and also includes green tea. (1) "Tea" all varieties except Not exceeding sixtysix paise per package tea falling within sub -item kilogram as the Central Gover -(2) of this item. ment may, by notification in the Official Gazette fix. (2) Package tea, that is to say, 46 paise per kilogram plus the tea packed in any kind of container duty for the time being leviable containing not more than 27 kilo - under sub -item (1) of this item, grams net of tea if not already paid.;