TMI Blog2000 (10) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of oxygen. The substance that is projected from the extinguisher may be a liquid, combination of liquid and gas, or of powder and gas. We are concerned in the appeal with the dry type fire extinguisher. Such a fire extinguisher contain in it sodium bicarbonate, dry calcium with which some chemicals are mixed (to prevent caking and to ensure its free flow). The extinguisher itself contained in addition to these chemicals a cylinder of carbon-di-oxide. When required the carbon-di-oxide is released from the cylinder, at a high velocity because of its pressure expelling the powder at high speed. 2. The appellant had paid duty on the small quantity of chemicals manufactured by it. It also procured quantities required of the chemicals for fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us to recount the judgment of the Supreme Court and other courts that manufacture necessarily requires the coming into existence of product that is distinctly different, with a different nomenclature, character and end use. None of these requirements in our view is satisfied by the activity carried out by the appellant. The appellant does not even undertake that the mixture of the chemical, it not being disputed that the sodium bicarbonate purchased by the appellant from elsewhere already contained in it the required quantity of China clay and other chemicals which are required to ensure its free flow and give it its characteristics of fire extinction. We are not required to answer the question whether such mixing amounts to manufacture. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge. Unless otherwise provided by a deeming provision to show that packing or refilling the chemical or the gas amounts to manufacture, the activity cannot be manufactured. Such deeming provision has been introduced into the chapter from 1st March, 1997 onwards. We are concerned with the period prior to this and therefore do not consider it necessary to examine whether the activity of the appellant would be manufacture within the meaning of the amended provision. 6. No duty was therefore payable on the activity carried out by the appellant. Accordingly the penalty imposed on the appellant and Jitendra Shah, its partner (in appeal 4253/94) are not sustainable. 7. Appeals allowed. Impugned order set aside. Consequential relief. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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