TMI Blog1994 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... riety goes out. The idea of Rule 173H(1) is that the goods namely, HD- 50B Model Machine would have remained on repairing. This is not so here. Reference to CBEC s Circular No. 14/87 is not relevant in the context because the appellant s case has to be examined in the light of the provision of Rule 173-H only. I agree with the Asstt. Collector that the process involved in this amounts to manufacture and hence benefit of Rule 173H will not be available. I accordingly confirm the Asstt. Collector s order and reject the appeal. The appeal is disposed of accordingly. 2. The Asstt. Collector in his order had held :- I have gone through the facts of the case, the material evidence on record viz. GP-2 No. 19, dated 29-6-1984. AR-4 No. 3, dated 29-6-1984, Form D-3 No. 33 dated 9-9-1985 and GP-1 No. 217, dated 16-11-1985. The party has itself admitted that the Lathe Machine was converted into another model, viz. SB-65/1000 mm. Rule 173H(I) lays down certain processes for which the goods can be brought back to the factory. The party cannot hold that the goods cleared by them were the same, i.e., the party should have cleared the Lathe Machine of a different model having different val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In support of his contention the ld. Advocate cited and relied on the decision in the case reported in 1983 (13) E.L.T. 1582 (SC) and 1982 (10) E.L.T. 237 (Bom.); that processing of duty paid goods will not amount to manufacture unless they fall under a different Tariff Item. In support of this the ld. Counsel relied on the ratio of the decision reported in 1979 (4) E.L.T. (J 181); that the processes of re-conditioning and repairing are bound to effect some changes in the processed item and, therefore, it cannot be said that the benefit of Rule 173H(2) will not be admissible to the processed item. In support of his contention the ld. Counsel relied on the Government of India Circular No. 14/87, dated 30-12-1987. It was argued for the appellant that for attracting fresh duty there should be a manufacture of the goods and that manufacture takes place only when a different commercial commodity comes into existence. In support of this contention the ratio of the decision reported in 1976 (37) STC-391 and 1986 (26) E.L.T. 353 and 1986 (23) E.L.T. 217 was relied upon. It was also argued that there has been a catena of decisions on the point that there cannot be two manufactures at two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace. The law of sales tax is also concerned with goods of various descriptions. It, therefore, becomes necessary to determine when they ceased to be goods of one taxable description and become those of a commercially different category and description. In this case the Hon ble Supreme Court had examined the question of taxability of a commodity and had held that, it may also become necessary to consider whether a manufacturing process which has altered the identity of the commercial commodity has taken place. 9. Now examining the facts of the present case it has been admitted by the appellant that the machine was converted from Model HD-50B/1000 m.m. to SB-65/1000 m.m. which resulted in some technical changes in its range of operations, and this change of model was obtained by way of removing/detaching, threading attachment and tail stock from the machine and by increasing the centre height from 50 to 65 by way of inserting the height pads below the head stock. These operations cannot be treated as repairing, reconditioning or re-making operations. On careful examination of these facts we find that these operations brought into existence a completely new Model capable of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manufacturing Co. Ltd. v. V.P. Bhide Others - 1977 (1) E.L.T. (J 34) (Bom.), which was cited and relied upon by the appellant, the relevant portion of the judgment of the Hon ble High Court is reproduced below :- The manufacturing of Cotton fabrics was complete when the goods were released to and sold in the market after duty was levied and collected from the manufacturers. Subsequent processing of these goods cannot amount to manufacturing of any new excisable goods as the goods are the same as were originally manufactured, except that they are processed. Goods which have already borne excise duty and do not fall under a different tariff item, duty cannot once again be levied and recovered as law does not permit collection of duty twice over. Comparing the facts of this case with the facts of the case before us we find that the Lathe Machine was brought to the factory for different processes permitted under Rule 173H wherein the condition was that the process undertaken should not amount to manufacture. The facts in the case relied upon by the appellant are different and therefore the case is easily distinguishable. The appellant also cited and relied on the case of Nerol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Lathe Machine of different Model performing different functions was brought into the factory but another Lathe Machine of a different Model performing some different functions was cleared and hence the goods were not in the same form and therefore the facts in the two cases are clearly distinguishable. 13. Reliance was also placed on Circular No. 14/87, dated 30-12-1987 wherein the Government had clarified that conversion of old buses into lorries by certain modification like removal of seats, closing of windows, opening and removing the glass in [rear] portion and replacing them with tyres will not amount to manufacture and resultant goods will not be liable to duty. However, if a complete new body is made on the old chassis it will amount to manufacture. Examining the facts in the case before us, we find that the Board had clarified the position in respect of a particular commodity namely, bus bodies and it does not in general terms lay down the law. Rule 173H of the Central Excise Rules is very clear and the conversion of a Lathe Machine brought into the factory in a different Model performing some different functions/operations is entirely different and distinguishable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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