The central legal point established in the judgment is the determination of duty liability based on whether there was manufacture of tartaric acid or only recovery, and the need to consider all relevant aspects before reaching a decision.

ORDER :

1. Heard learned counsel for the parties.

2. These appeals have been filed against the judgment passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 24-8-1999.

3. Briefly stated, the facts are as follows:

Respondents 3 and 5 are manufacturer of ethambutol hydrochloride IP. For manufacture of this product they import two items (i) DL 2-aminobutanol, and (ii) tartaric acid. In the process of manufacture two intermediate products, namely, DL 2-aminobutanol and L-2 ABT come into existence. For our purpose we are only concerned with L-2 ABT. These two companies give L-2 ABT to the 1st respondent. It is claimed that the 1st respondent merely recovers tartaric acid, contained in L-2 ABT, and returns the tartaric acid to Respondents 3 and 5. The appellant claimed that tartaric acid was being manufactured by the 1st respondent. They claim that it is a new and distinct product from L-2 ABT. The appellant, therefore, sought to levy duty on the manufacture of tartaric acid. The Commissioner held, on the basis of various affidavits filed by persons in the trade and experts in the field, that there was no manufacture but only recovery of tartaric acid. The Commissioner also held that the claim was time-barred as the extended period under Section 11-A was not available. The appeal has been dismissed by the impugned order only on the ground that there was no manufacture. It is held that the process merely involves recovery of tartaric acid.

4. From the various affidavits, which are on record, it appears that during manufacture of ethambutol hydrochloride IP the two substances DL 2-aminobutanol and tartaric acid have to be mixed together. As stated above two intermediate products came into existence one of which is L-2 ABT. As per the affidavits, in layman's language, L-2 ABT is nothing else but contaminated tartaric acid. As per the affidavits, it is unusable without a process of recovery. Thus, as per the affidavits, there is only recovery of the tartaric acid which was the original imported product.

5. If this be the position then tartaric acid is merely being recovered for further use and there is no manufacture. But if L-2 ABT is in the hands of a person who had not imported tartaric acid and that person, by a process gets tartaric acid which is then sold in the market, then there would be manufacture and duty would have to be paid.

6. Mr. Soli J. Sorabjee, learned Attorney General has invited our attention to two statements made by the Directors of the 1st respondent which shows that apart from recovery of tartaric acid (for and on behalf of Respondents 3 and 5) the 1st respondent is also selling tartaric acid, recovered from L-2 ABT, on its own account. If that be so, then duty is payable on such sales. We are informed that the 1st respondent has filed a classification list but they have cleared the goods without payment of any duty. These are aspects which the Tribunal has not looked into at all.

7. The other question which requires consideration is whether the 1st respondent is only doing job work on behalf of Respondents 3 and 5 and/or whether there are transactions of sale between these parties. If the 1st respondent is only doing job work and recovering on behalf of Respondents 3 and 5 who had imported tartaric acid then there would be no manufacture. But if there are transactions of sale between these persons or anybody else then duty would be payable in respect of those transactions. These aspects must also be looked into by the Tribunal.

8. We, therefore, set aside the impugned order and remit the matter back to the Tribunal who will consider all these aspects. The Tribunal to permit all parties to raise all contentions available in law. The Tribunal will also consider whether the extended period of limitation would be available to the Department in this case.

9. With these directions, the appeals stand disposed of. There will be no order as to costs.