TMI Blog2016 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject of manufacture in the case of DCM Cloth Mills [1962 (10) TMI 1 - SUPREME COURT OF INDIA] the Apex Court has laid-down the yardstick to determine if an activity or process amounts to manufacture. When we apply such yardstick to the facts of the present case, there is very little doubt that, a new product, viz isolated soya protein which is perceived differently and which has a name, character and use which is totally different from the raw material namely soya flour, has come into existence. Therefore, we have no hesitation in concluding that the process of manufacture has been undertaken by the appellant and that the final products, ‘soya protein isolate’ would be chargeable to duty. Period of limitation - proviso to Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption notification under Notification No. 8/2003-CE dated 01.03.2003 as amended and filed declaration as required in the notification declaring the aggregate value of clearance of the specified goods, viz isolated soya protein . There is no dispute that the other products viz. milk powder and ghee are totally exempted from payment of duty. Revenue took the view that the product isolated soya protein was chargeable to duty under heading 35.04 of Central Excise Tariff Act, 1985. After carrying out investigation against the appellant, a demand of ₹ 25,50,205/- was confirmed on the appellant vide the original authority order dated 06.02.2008. When this was challenged before the first appellate authority their appeal was rejected an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impurities are removed but the product content in substance continues to remain the same. Further, they have submitted that it is technically an admitted position that the commodity soya flour holds and contain 90% of the protein. Since no other element/ commodity holding the protein content is added in the process directly or indirectly, hence the process does not amount to manufacture in terms of the provision of Section 2(f) of the Central Excise Act. They have further claimed that in terms of various case laws, since no new product is coming into existence as a result of the manufacturing product, there is no justification for Revenue to charge excise duty on the isolated soya protein. In this regard, they have cited the following c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and drying are nothing but the process carried out amounting to manufacture . 4. Heard Shri Rajesh Rawal, ld. Advocate for the appellant and Dr. Mrs. Neha Garg, ld. DR for the Revenue. Ld. Counsel for the appellant reiterated the process of manufacture and took us through the various case laws to thrust their argument that the process of manufacture of isolate soya protein does not amount to manufacture. 5. Ld. DR on the other hand submitted that the question of manufacture needs to be decided after due consideration of the fact whether as a result of the manufacturing processes, whether new product emerges which has a new name, character or use as laid-down by the Hon ble Supreme Court in the case of DCM Cloth Mills 1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 2.3 Protein Isolates Isolates are the most refined forms of soya protein. Defatted flours are processed one step further then the concentrates by removing the water isoluble polysaccharides as well as the water soluble sugars and other minor constituents. The isolates are made from undenatured defatted flakes by extraction with dilute alkali. The slurry is centrifuged to remove the proteins precipitate as curd. After washing, the curd may be spray dried directly to yield isoelectricprotein. Generally the curd is neutralized to pH 6.8-7.2 and then spray dried to yield proteinate form. The proteinates are more water soluble then the isoelectric protein and therefore are more readily incorporated in wet food systems. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and there must be transformation; a new and different article must emerge having a distinctive name and character of use . 8. When we apply the above yardstick to the facts of the present case, there is very little doubt that, a new product, viz isolated soya protein which is perceived differently and which has a name, character and use which is totally different from the raw material namely soya flour, has come into existence. 9. In the light of the above, we have no hesitation in concluding that the process of manufacture has been undertaken by the appellant and that the final products, soya protein isolate would be chargeable to duty. 10. The appellant has raised the argument of time bar under proviso to Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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