TMI Blog2007 (5) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... ESENTED BY : S/Shri H.S. Padmanabha, M. Chandrashekaran and E.N. Ramachandra, Advocate, for the Appellants. Shri Anil Kumar, JDR, for the Respondent. [Order per : S.L. Peeran, Member (J)]. In all these appeals, the issue is common and hence they are taken up together for disposal as per law. 2. The question that arises for consideration in all these appeals is as to whether the crushing of Shigekai pods and rita mixed in the proportion of 10:1 and marketing in retail packs would amount to process of manufacture and liable to be classified under sub-heading 33 05.99 for purpose of levy of excise duty. The allegation against the appellant is that they have not taken licence and registered themselves and were carrying on the activity without payment of duty and hence they were issued with show cause notices demanding duty for the various, periods for the concerned activity and treating the resultant shigekai power as excisable product. The Hon ble High Court of Karnataka in Writ Appeal No. 1413-1736/98 [1999 (111) E.L.T. 27 (Kar.)] had decided the issue in revenue s favour. The matter was taken up before the Apex Court and the Apex Court in Civil Appeal No. 8608/01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms shigekai powder was also known as soap nut powder. It is submitted by learned advocate Shri Anantha Padmanabha in the case of M/s. S.R.K. Products Ltd., that the judgments rendered by High Court of Judicature at Madras in the case of Mayil Mark Nilayam v. Superintendent Central Excise and Others as reported in 2001 (127) E.L.T. 659 (Mad.) = 2001 (2) (ECL) 71 (Mad) is in assessee s favour, wherein it has been clearly held that bringing into existence of shigekai powder will not bring the item within excisable net. The finding rendered by the Madras High court in the said judgments in para 55 to 65 is relied, which is reproduced herein below. 55. The Seeakkai, in my considered view will not fall under the ambit of items other grouped as 3305.99 and therefore it is not an excisable commodity. Seeakkai is a natural product and it is crushed into powder and used for removing oil stains or used for taking oil bath. It is misnomer to call seeakkai as a soap nut. Seeakkai or Arapputhool or for that matter Araputhool which are the subject matter of consideration in this writ petition will not fall under any one of the entries or heading even if they are mixed with one or more other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soap as given in the new Webstor s Dictionary is at page-1438 which reads as follows :- A Chemical compound of an alkali and fat, soluble in water, and used for detergent or cleansing purposes. 59. As against the expression soap which is used as a detergent for cleaning purposes the soapnut or soapbark or a soapberry is totally different which is a fruit of certain tropical and subtropical trees of the genus Sapindus, used as a substitute for soap; any of the trees bearing such fruit is known as Saponaria. Soapberry will get dry or berry dried is called as soapnut commonly as it is also referred to as a soapbark and it will be misnomer to refer the same as a substitute for soap. 60. The expression Seeakkai means Soap Pod Wattle (Tamil Lexicon). Hence it is clear that Seeakkai is not soapnut powder or soapnut. Hence, it is clear that Seeakkai is different from soapnut and it is not in effect a substitute. It is neither a detergent or a scouring powder, nor it has any application to the oil to the hair, nor it will come under any of the headings in Chapter 33 or 34. It cannot also be brought under the expression other in any of the chapters as well. 61. The product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the show cause notice issued to the appellants was wholly without jurisdiction that the Registrar, in the circumstances of the case, was not justified in action as the TRIBUNAL. Hence, this objection is overruled. 64. In the circumstances, the Writ petition is allowed and the rule nisi already issued is made absolute. Consequently, W.M.P. Nos. 19319 and 19320 of 1999 are dismissed and W.M. P. Nos. 9757 and 9758 of 1998 are closed. 65. In W.M.P. No 9759 of 1998, there will be consequential direction to the respondents to forthwith release all the books of accounts, finished products and raw materials seized from the petitioner on 2-1-98 from the petitioner s premises at No. 431, Tiruvottiyur High Road, Chennai 21, if they have not already been released and bond, if any executed will stand cancelled consequently. Parties shall bear their respective costs in this writ petition. 7. It was also submitted that vegetable plaiting material and vegetable products not elsewhere specified are included under Chapter Heading 14-1-2000 earlier to 2004-05 carrying nil rate of duty. The soap nut powder is nothing but a forest produce and this contention has been accepted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products continues to retain its original character though in a modified form. He submits that in view of these two judgments, the process of crushing the shigekai pods and rita to make it into a better form will not bring into existence new product as the end product continues to retain its original character. 10. Learned SDR reiterated the departmental view by reading out the Commissioner s Orders. 11. We have carefully considered the submissions and perused the orders as well as the judgment cited by learned counsels. 12. The Apex Court in the case of Sri Ramakrishna Soap Nut Works in Civil Appeal No. 8608/01 has set aside the Division Bench judgment of the Karnataka High Court for demands subsequent to January 99. The appellant in Ramakrishna Soap Nut Works (Appeal No. 265 639/04) has prayed for withdrawal of appeal as it pertains to period earlier to January 99. Hence, these two appeals are dismissed. The Apex Court while setting aside the judgments of the Karnataka High Court has referred to the appeal pending before CESTAT and hence they have not expressed their opinion on merits and have directed the appellate authority i.e. this Tribunal, to decide the issue on me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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