Cit Vs. Alankar Tiles - Court Judgment

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counsels: r.l. jain, for the revenue. head note: income tax appeal (high court)--substantial question of lawassessee not served with notice of appealthe tribunal allowed the application of the assessee seeking rectification of the main order passed by the tribunal in appeal and had accordingly recalled the main order on the ground that the assessee was not found to be served the notice of the appeal before the appeal was finally heard and decided against them. the revenue felt aggrieved and filed appeal contending inter alia that it involved substantial question of law. held: the tribunal having recorded a categorical finding that the assessee was not served with memo of appeal before it was heard finally, held that appeal which was heard ex parte and without notice to an assessee deserved to be set aside. tribunal was perfectly justified in recalling its order passed behind the back of assessee. revenue s appeal against such order involved no substantial question of law. income tax act, 1961 s.260a in the madhya pradesh high court-indore bench a. m. sapre and ashok kumar tiwari jj. - section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - in our opinion, the tribunal was perfectly justified in recalling the order, which in our opinion, was passed behind the back of the assessee.this is an appeal filed under section 260a of the income tax act, 1961, by the revenue against m. a. nos. 46, 47 and 48/ind of 2003, which arises out of i.t.a. nos. 164, 626 and 627/ind of 1997.2. by the impugned order, the tribunal has allowed the application of the assessee seeking rectification of the main order passed by the tribunal in appeal and has accordingly recalled the main order on the ground that the assessee was not found to be served the notice of the appeal before the appeal was finally heard and decided against them. the tribunal went into this question and confirmed that the notice of the appeal was not properly served on the assessee and, therefore, by the impugned order, the main order passed in appeal was recalled on payment of rs. 1,000 by way of costs to be paid by an assessee and the appeals were accordingly set down for final hearing after affording an opportunity to the assessee.3. it is against this order that the revenue has felt aggrieved and filed this appeal contending inter alia that it involves substantial question of law as is required to be made out under section 260a of the act.4. in our opinion, the appeal does not involve any question of law much less any substantial question of law as is required to be made out under section 260a of the act. there is a categorical finding recorded by the tribunal holding that the assessee was not served the memo of appeal before it was heard finally. under these circumstances, it was held that the appeal which was heard ex parte and without notice to an assessee deserves to be set aside. in our opinion, the tribunal was perfectly justified in recalling the order, which in our opinion, was passed behind the back of the assessee. if the assessee is granted an opportunity of hearing, in appeal, then there is no prejudice caused to the revenue. it is for the reason that as and when the appeal is heard by the tribunal, the revenue will also be heard by the tribunal before any order is passed on the merits. in such matters, the revenue should not have even filed the appeal which does not really involve any substantial question of law.5. the appeal thus fails and is hereby dismissed in limine.