TMI Blog1988 (5) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... -5-1981 to the Collector of Central Excise, Nagpur challenging the classification made by the Superintendent of Central Excise under Item 68 of the Tariff. The Collector of Central Excise, vide his Order-in-Review 9/81, dated 1-8-1981 passed under Section 35A(2) of the Central Excises and Salt Act, 1944, set aside the order of the Superintendent of Central Excise and held that the fireclay in powder form would not fall under Tariff Item 68 and would not be chargeable to Central Excise duty. The classification list No. 30/81 effective from 1-4-1981 was modified by him accordingly. The records relating to the order of the Collector was examined by the Central Board of Excise and Customs, New Delhi under Section 35A of the Central Excises and Salt Act and, after issuing necessary show cause notice to the appellants and considering their reply, the Board passed Order-in-revision No. 64/R/83, dated 2- 9-1983 which has been challenged by the appellants before us in the present appeal. 2. By the impugned order-in-revision, the Central Board of Excise and Customs has set aside order of the Collector of Central Excise, Nagpur and has held that fireclay powder is liable to duty under Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracts from page 28 of Industrial Ceramics by Felix Singer (1979 Reprint) :- The use of this term has unfortunately become increasingly wide and thereby loose by its application. Strictly it should be applied only to refractory clays and shales which occur in hard masses that do not in their natural state take up water and become plastic, but on fine grinding will do so. 3. In the grounds of appeal, the appellants have stated that the finding of the Central Board of Excise and Customs that the process of grinding of hard masses of fireclay results in a new product with a new characteristics is unfounded and without evidence. They have stated that in the revision show cause notice, vide paragraphs 3 and 4 thereof, the main point was as to whether fireclay and fireclay mortars are distinct and separate, but in the order-in-review the Board has held that the plasticity of the ground fireclay distinguishes such ground fireclay from hard mass of fireclay which is mined and as such the process of grinding of such hard masses of fireclay results in a new product with a new characteristics and consequently is a manufacturing process under Section 2(f) of the Central Excises and Salt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother v. Union of India and Others. (vii) 1985 (20) E.L.T. 257 (Mad.) in the case of Coromandal Prodorite Pvt. Ltd. v. Government of India and Others. (viii) 1980 E.L.T. 343 (S.C.) in the case of Deputy Commissioner, Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. PIO Food Packers. (ix) 1980 E.L.T. 696 (Bom.) in the case of Sandoz India Ltd. v. Union of India and Others. (x) 1983 ECR 391 -D (CEGAT) in the case of Collector of Central Excise, Patna v. M/s. Pyrites, Phosphates and Chemicals Ltd. (xi) Mc. Nicol v. Pinch (1906) 2 K.B. 352 (xii) 1983 E.L.T. 1566 (S.C.) in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. v. Union of India and Others. (xiii) 1983 ECR 949 D (CEGAT) in the case of M/s. Indian Explosives Ltd., Calcutta v. Collector of Customs, Calcutta/Bombay. He has explained that in 1983 E.L.T. 1542 (S.C.), the Hon ble Supreme Court held that separating Wolfram Ore from the rock to make it usable ore is a process of selective mining and is not a manufacturing process because the chemical structure of the ore remains the same. Unless the ore is roasted or treated with any chemical it cannot be classed as processed. In 1983 E.L.T. 2401 (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcially known 330-Saccharin into 550-Saccharin did not make the latter product different from the former although in the second product the strength of Saccharin was different from the first one. The learned Advocate has further explained that in the case of Union of India and Others v. Delhi Cloth and General Mill Co. Ltd. and Others, reported in 1977 E.L.T. (J 199), the Hon ble Supreme Court has held that the word manufacture is generally understood to mean as bringing into existence a new substance and does not mean merely to produce some change in a substance. There must be a transformation, a new and different article must emerge having a distinctive name, character or use to constitute a process of manufacture. He has, therefore, argued that as the fireclay in powder form remains as fireclay and there was no change in the name, character or use, no process of manufacture within the meaning of Section 2(f) of Central Excises and Salt Act, 1944 is involved and hence the fireclay in powder form is not dutiable under Central Excise Tariff. 5. Regarding plasticity of fireclay, the learned advocate has argued that there is plasticity in the fireclay in lumps form as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excises and Salt Act, 1944. The ratio of those decisions have been indicated in paragraph 4 ante. Shri Sacchar has heavily relied on the decision of this Tribunal reported in 1985 (22) E.L.T. 109, in the case of Associated Soapstone Distributing Company Pvt. Ltd. v. Collector of Central Excise, Indore. In the said case, as it appears from paragraph 2 of the decision, the appellants produced soap stone powder by grinding soap stone lumps in an electric grinder and thereafter undertaking some further processes. The soap stone powder so obtained was used as a filler in the manufacture of paper, soap, rubber etc. Finely ground soap stone powder was also used as the base for manufacturing talcum powder which is a cosmetic. The appellants were reportedly supplying their soap stone powder to paper mills and soap manufacturers. The Tribunal observed that The same process may result in a new and different product in the case of one commodity but not so in the case of another commodity. The case of each commodity, therefore, stands on its own individual circumstances". Considering the facts and materials of that case, the Tribunal held that the name, character and use of soap s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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