Judgment:
1. These are two applications for waiver of pre-deposit of Central Excise duty as under :Kaycee Electricals Rs. 4,98,84,151/-Vimla Rolling Mills Pvt. Ltd. Rs. 1,64,71,606/- 2. Shri A.R. Madhav Rao, learned Advocate, submitted that the Appellants are engaged in the process of making copper wire rods out of copper wire bars which does not amount to manufacture. He relied upon the decision in the case of Municipal Corporation of Greater Mumbai v.Devidayal Electronics - . He mentioned that by the process of hot rolling copper rods are made from copper wire bars; that the basic character of the copper remains as such and there does not emerges any change in character, name, composition or use; that the process does not amount to manufacture. He, further, submitted that the duty beyond the normal period of limitation is not demandable as they were filing the classification list with the department and there was a general practice prevailing in the trade treating the process not amounting to manufacture; that this is evident from the fact that subsequently the Central Government has issued a Notification No. 3/91 (N.T.) under Section 11C of the Central Excise Act. He relied upon the decision in the case of Chloride India Ltd. v. CCE, 1994 (72) E.L.T.435 wherein it has been held that where there is a doubt in the nature or in the mind of the department itself, extended period for demand of duty cannot be invoked. The learned Advocate fairly mentioned that in respect of applicant No. 1 the total duty, if any, payable will be only Rs. 30 lakhs within normal period of time limit and in respect of applicant No. 2 the duty will be only Rs. 10 lakhs.
3. Opposing the prayer Shri Randhir Singh, learned DR, reiterated the findings as contained in the impugned Order.
4. We have considered the submissions of both the sides. Apparently the decision in the case of Devidayal Electronics was in respect of Octroi and the definition of manufacture as contained in the relevant Rules of Bombay Municipal Corporation Exemption from Octroi (Free Gift, etc.) Rules, 1966 has not been brought on record. Further, the processing units were reducing the thickness of the wire bar or wire rods in the said matter. In view of these facts there is no prima facie case for applying ratio of the said decision in the present matters. However, the learned Advocate has made out a strong prima facie case on the ground of non-invocability of the extended period of limitation for demanding the duty. We, therefore, direct the Applicant No. 1 to deposit a sum of Rs. 40 lakhs only and Vimla Rolling Mills Pvt. Ltd. to deposit a sum of Rs. 10 lakhs within 6 weeks from today. On deposit of the said amount there shall be waiver of pre-deposit of remaining amount of duty and recovery of the same will remain stayed during the pendency of the appeals. The matter will come up for reporting compliance on 3-6-2005.