TMI Blog1992 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... for such manufacture/process, without following the central excise procedure and without payment of central excise duty at the appropriate rate leviable thereon. The main charges against the appellants are that they have processed fabrics by Tapela process and calendering with aid of power would subject to man-made fabrics and is liable to central excise duty. The Additional Collector who adjudicated the proceedings dropped the first charge, i.e., Tapela Dyeing process on the ground that since the process is not undertaken with the aid of power and steam, it does not fall within the purview of Tariff description. As such, Tapela processed fabrics would be exempted from levy of central excise duty. As regards second issue, the contention of the applicant that they were not having calendering machines at the relevant point of time and calendering process, i.e., ironing with calendering machine having plain rollers does not amount to process of manufacture, was negatived by the Adjudicating Authority and held that since the applicants were subjecting the man-made fabrics to calendering with the plain rollers and also dyeing with Tapela Dyeing Process in the same premises, they would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner with the appellant s firm. He contended that appellant was neither a owner of the calendering machine nor he was in possession of the said machine during the relevant period. Further said machine was not there at the time of raid since that machine was given for repairs to M/s. Shiva Engineering Welding Works by Kishan Chand Arora which is confirmed by repair bill and payment receipt that machine was with repairer during the period 18-11-1987 to 18-1-1988. The documents sale letter for having sold in favour of Krishan Chand, octroi receipt for bringing the machine from Bulsar into Surat Municipality Limit, repair bill, payment receipts, affidavit by the landlord for having let out portion of the premises to Kishan Chand B. Arora, and letters from the customers of the appellant confirming that they have received back the processed MMF only after Tapela Dyeing process and without calendering were produced by the appellants to prove that said calendering machine could not be operated by the appellant. But these were neither properly considered by the Adjudicating Authority nor cross-examined the concerned persons before rejecting them. He referred to decision of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the name of the firm but in the name of individual and it is for the party to prove that two firms were in existence and same was not established. She said that subsequent evidences were cooked up and Adjudicating Authority was right in rejecting them and justified in holding that the appellant had calendering machine for calendering the fabrics in the factory premises of the appellant. 6. In reply, Shri Willingdon Christian submitted that Notification is not the guiding factor to decide the issue whether particular commodity is excisable or not or it amounts to manufacture but it should be determined by the definition of manufacture used in the Excise Act as it was held by the judicial pronouncements. He said that statement of appellant cannot be relied upon as it was retracted and burden lies on the Department to prove whether it was an ownership or partnership at the time of seizure with the independent evidence. He contended that appellant had no power connection and this important piece of evidence was also not considered by the Department before arriving at the conclusion that goods were processed with the aid of power. 7. We have given our anxious consideration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inishing processes specified in the Table hereto annexed from the whole of the additional duty of excise leviable thereon under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957): Provided that no such exemption shall apply if man-made fabrics, falling under the said Chapters are subjected to any process or processes specified in the said Table, within the same factory in which they have been subjected to any process, other than the processes specified in the Table. THE TABLE Sr. No. Description (1) (2) 1. Calendering with plain rollers. 2. ......................... Section 2(f) of the Central Excises and Salt Act, 1944 contains a definition of the word manufacture . But actually this section does not define the word manufacture or manufacturer but only lays down an inclusive definition. Therefore, the word manufacture for the purpose of Central Excise has to be construed in its natural and plain meaning, but it shall also include any process incidental or ancillary to the completion of a manufactured product. After its amendment in 1986, the extended meaning was introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 19-I of the First S.C.hedule includes bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink-proofing, organdie processing or any other process of any one or more of these processes; In the said case, Supreme Court held that:- The expression any other process in Section 2(f)(v) of the Central Excises and Salt Act, 1944 cannot be considered ejusdem generis, so as to partake of the nature, and character of the process and those belong to the same genus. The expression bleaching, mercerising, dyeing, printing, waterproofing, rubberising, shrink-proofing, organdie processing which precede the expression or any other process in Section 2(f)(v) contemplate processes which impart a change of lasting character to the fabric by either the addition of some chemical into the fabric or otherwise. Any other process in the section must, share one or the other of these incidents. The expression any other process is used in the context of what constitutes manufacture in its extended meaning .." Further it observed that the expression ejusdem generis ....... of the same kind or nature ..signifies a principle of construction whereby words in a statut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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