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2016 (9) TMI 425 - CESTAT NEW DELHI

2016 (9) TMI 425 - CESTAT NEW DELHI - TMI - Duty liability - Isolated soya protein - process undertaken by appellant amounts to manufacture or not - Held that:- the objective of the process of manufacture of protein isolate appears to be to increase the concentration of the protein while at the same time eliminating the content of carbohydrate. As per the flow chart, the starting point of the making process is de-oiled cake, i.e. de-fatted. The net result is that the final product - isolate soya .....

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hich 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 - activity was within the knowledge of the department inasmuch as the appellant were regularly filing declarations as requi .....

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nits are considered together, the appellant were not eligible for the exemption under the SSI notification. Therefore, the extended time limit under provision to Section 11A has been rightly invoked by Revenue. - Decided against the assessee - Excise Appeal No. 2360 of 2008 - Final Order No. 52965/ 2016 - Dated:- 10-8-2016 - Dr. Satish Chandra, President and Mr. V. Padmanabhan, Member (Technical) Shri Rajesh Rawal, Advocate for the appellant Ms. Neha Garg, DR for the Respondent ORDER The present .....

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gregate 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 06.02.200 .....

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nufacture, as claimed by the appellant starting with de-oiled cake (DOC). Flow chart of manufacturing process is reproduced below. The short process involved is that the Edible Soya flour is dissolved into water, in that process the soluble protein turns merged in the liquid form, where as the in-soluble-elements alongwith impurities are removed, this process of removal is repeated by lowering and increasing PH, ultimately the said paste so reduced and emerged is spray-dried, thus this process i .....

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. It is further submitted that during the process only in-soluble 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 .....

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s. CCE 2006 (196) ELT 400 (SC) iv) CCE vs. Markfed Vanaspati & Allied Indus. 2003 (153) ELT 492 (SC) v) CCE vs. Laljee Godhoo & Co. 2007 (216) ELT 514 (SC) vi) M/s Tungabhadra Ind. Vs. Commercial Tax Officer AIR 1961 SC 412 vii) Dabur India Limited vs. CCE - 2004 (174) ELT 261 viii) Raj Petrochem Industries vs. CCE - 2001 (129) ELT 186 3. As against the above contention of the appellant, Revenue has taken the view that the process carried out amounts to manufacture. For appreciating the .....

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lant s plea that removal of impurities by lowering and increasing P.H. is not correct and cannot be accepted. The change of chemical composition through chemicals resulting in emergence of a new product alongwith some physical process of wasting, decant ring 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 .....

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199 which has been followed subsequently in several judicial pronouncements. She drew our attention to the technical literature titled as Soyabean Processing and Utilisation in India (which is part of appeal papers,) where the compositional and nutritional characteristics of protein isolate have been indicated. She submitted that food products mainly consist of three nutritional elements - protein, carbohydrates and fats. All the three elements are present in varying quantities in all types of f .....

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tein 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 t .....

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he process of manufacture of protein isolate appears to be to increase the concentration of the protein while at the same time eliminating the content of carbohydrate. As per the flow chart, the starting point of the making process is de-oiled cake, i.e. de-fatted. The net result is that the final product - isolate soya protein is nutritionally very different from the starting raw material - soya flour. The use for which the soya protein isolate is put to is also different from that for which th .....

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manufacture. Manufacture implies a change, but every change is not manufacture and yet change of an article is the result of treatment, labour and manipulation. But something is necessary 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 .....

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