By TIOL News Service

NEW DELHI, NOV 01, 2014: AGAINST the final order passed by the CESTAT, the appellant has filed a ROM application and the ground is that the Bench has not considered the decisions passed in the case of M/s. E. Merck India Ltd. [Final order No. 955/98-C dated 12/10/1998] & S.D. Fine Chemicals Ltd. [Misc. Order No. 129/91-C and Final Order No. 569/91-C, dated 25-6-1991] wherein it was held that mere purification of a substance will not amount to 'manufacture'. It is also submitted that in view of the above there is an error apparent on record as held in the case of Honda Siel Power Products Ltd. vs. Commissioner of Income Tax - 2007-TIOL-211-SC-IT. Inasmuch as the aforesaid decisions should be considered by the Bench and a revised order may be passed.

The AR submitted that the Tribunal had examined the issue at length and after examining the facts come to a specific conclusion that the activity undertaken by the appellant amounted to "manufacture" and, therefore, there is no error committed. Moreover, the Tribunal cannot re-appreciate the evidence as that would amount to review of order which is not permissible under the guise of rectification. It is, therefore, pleaded that the ROM application be dismissed.

The Bench observed -

++ In para 6.1 of the order, taking into account the various processes undertaken, the difference between the product with which the process was started and the resultant product and how the finished products were known differently from the raw materials, this Tribunal came to the conclusion that a new product having a distinct character, name and use had emerged and, therefore, it was held that the process undertaken by the appellant amounted to "manufacture".

++ As regards the reliance placed on the decision of the Tribunal in the case of E.Merck Ltd., in the said decision, this Tribunal did not examine the various processes undertaken therein and did not give any finding as to whether the same amounted to manufacture or not? It merely held that the ratio of the Supreme Court's decision in the case of S.D. Fine Chemicals would apply and, therefore, the Revenue's appeal has no merits. Whereas, in the present case, we have examined at length the various process undertaken, the change that has occurred in the product both in terms of quality and nomenclature and how the product is marketed after undertaking various process. Therefore, there is a world of difference between the order passed in E.Merck Ltd. case and in the present case. The appellant wants us to re-appreciate the evidence by way of ROM application. We are afraid, this argument is not tenable. … In the present case, we have given clear and cogent reasons for coming to the conclusion drawn in the impugned order. If the appellant is aggrieved of the same, the remedy lies in filing an appeal as provided in law.

Holding that there is no merit in the application for Rectification of Mistake, the same was dismissed.

(See 2014-TIOL-2155-CESTAT-MUM)