Judgment:
ORDER
Suhas Chandra Sen, J.
1. The Court: The order passed on 21st January 1992 is recalled and the matter has been heard afresh the following judgment and order is passed.
2. The petitioner is the manufacturer of Ultramarine blue. The petitioner's products are being charged to excise duty under Tariff Item No. 32.06. The contention of the petitioner is that the ultramarine blue is manufactured in bulk and then the same is sold in small packets when no manufacturing process takes place.
3. It is not necessary to go into this controversy any further in view of the notification issued by the Government of India, Ministry of Finance, Department of Revenue, dated 16th December 1991. A copy of the said notification has been handed up in court and the same is kept as part of records of this case. It has been specifically provided in the said notification that the ultramarine blue falling under sub-heading No. 3212.90 of the Schedule to Central Excise Tariff Act was being exempted from duty, provided that such ultramarine blue was manufactured out of ultramarine blue on which duty of excise leviable thereon under the Central Excises and Salt Act had already been paid. The petitioner case is that the petitioner has already paid the excise duty on ultramarine blue when the same was manufactured in bulk. It appears that there is no controversy about this contention. The goods are not only sold by the petitioner in bulk but also in small packets. The only controversy is whether the packing of these goods results in manufacture of any marketable commodity.
4. In view of the aforesaid notification the writ petition must succeed.
5. There is also an additional point. In the case of Lathia Industrial Supplies Co. Pvt. Ltd. v. Collector of Central Excise, Baroda : 1987(29)ELT751(SC) the Supreme Court had to deal with a case where a notification was issued with effect from March 14, 1986 whereby it was decided that re-rubberising and relining of old and used vessels such as tanks etc. might be held as process and not amounting to manufacture in terms of Section 2(f) of the Central Excises and Salt Act, 1944. It was not in dispute that after March 14, 1986 the Central Excise Authorities were not treating the process of re-rubberising and re-lining of old and used vessels as manufacture for the purpose of levy of duty under the Act. The question was whether the same process for the period before March, 14, 1986 could be treated as manufacture. The Supreme Court observed that there was no dispute that the same process, that is re-rubberising and re-lining, took place before and after March, 1986 and the law to be applied had not changed. The Supreme Court held in that case as follows :-
'We allow the appeal and hold that the rubberising and re-lining of old and used rollers would not amount to manufacture both before and after March 14, 1986.'
6. In the instant case also I see no reason why law should be different before and after the notification issued by the Government of India dated 16th December, 1991.
7. Accordingly, there will be order in terms of prayer (a) of the petition. All interim orders, if any are vacated.
8. If the petitioner has deposited any amount pursuant to the interim order passed by this Court on March 20, 1991 in respect of the ultramarine blue in small packets the petitioner will be entitled to withdraw the said amount. It has been stated on behalf of the petitioner that certain amounts have already been deposited with the UCO Bank, Burrabazar Branch.
There will be no order as to costs.
Prayer for stay of this order made on behalf of the respondents is refused.
All parties including the Bank shall act on a signed copy of the operative part of this order on the usual undertaking.