The burden of establishing that a product is excisable under the Central Excise Act lies with the revenue, and mere classification under different tariff headings does not suffice to determine manufacture.

1 This batch of appeals involve common questions and, therefore, they have been heard together and are being disposed of by a common judgment.

2 The revenue is the appellant in all the appeals impugning the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal in the appeals preferred by the respective respondents.

3 In C.A. No. 7165 of 2000 the Commissioner of Central Excise, Chandigarh - II, has impugned the order of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) dated 29th June, 2000 whereby the Tribunal while upholding the plea of the respondent that the process of cold rolling of steel strips from hot rolled strips does not amount to manufacture of a new excisable commodity, remitted the matter to the Assistant Commissioner so that the respondent may be able to satisfy the Assistant Commissioner on the question whether they had not passed on the burden of duty to their customers.

4 In C.A. Nos. 7706-7711 of 2002 in which the respondent is the same as in C.A. No. 7165 of 2000, the Tribunal following its earlier decision dated 29th June, 2000 (which is impugned in C.A. No. 7165 of 2000) allowed the appeal preferred by the respondent and held that the revenue had failed to discharge the burden of showing that the manufacture had taken place by the process of cold rolling of steel strips from hot rolled strips. However, it remitted the matter to the Assistant Commissioner to decide the question as to whether it had not passed on the incidence of duty to the customers.

5 In C.A. Nos. 439-442 of 2000 the Tribunal following its earlier decision in the case of Steel Strips Ltd. (impugned in C.A. No. 7165 of 2000) held that cold rolled strips produced out of duty paid hot rolled steel strips do not undergo a process of manufacture and hence are not chargeable to excise duty.

6 We may at the threshold observe that while in C.A. No. 7165 of 2000 and C.A. Nos. 7706-7711 of 2002 the dispute arose when the respondent filed applications for refund of excess excise duty paid, in C.A. Nos. 439-442 of 2002 the question arose in the context of a show cause notice issued to the respondent alleging clandestine removal of cold rolled steel strips produced out of duty paid hot rolled steel trips without payment of duty. The Commissioner found that there had been clandestine removal of cold rolled strips without payment of excise duty and, therefore, ordered recovery of duty, interest, penalty etc. The Tribunal on appeal set aside the order of the Commissioner, Central Excise (Adjudication), Delhi holding that since no duty was payable on cold rolled strips, there was no evasion of excise duty.

7 The representative facts may be taken from C.A. No. 7165 of 2000.

8 M/s. Steel Strips Ltd., respondent herein, held Central Excise Registration for the manufacture of cold rolled steel strips. It had paid central excise duty on cold rolled steel strips made from hot rolled steel strips between the period 19.6.1996 to 29.6.1996 amounting to Rs. 42,07,977/-. It filed an application for refund of the excise duty so paid on cold rolled steel strips relying upon the decision of this Court in its own case reported in 1995 (77) ELT 248 (SC) : Collector of Central Excise, Chandigarh v. Steel Strips Ltd. According to the respondent this Court held in the aforesaid decision that hot rolled strips upon which excise duty had admittedly been paid did not undergo the process of manufacture at the hands of the assessee which resulted in the production of cold rolled strips and, therefore, no excise duty was payable on such cold rolled strips. Consequently it claimed refund of the excise duty paid on cold rolled strips. The application for refund was examined by the department and ultimately a show cause notice was issued by the Assistant Commissioner, Central Excise Division, Patiala, on August 14, 1996 calling upon the respondent to show cause why the refund application should not be rejected for the