TMI Blog2022 (9) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... sical form as, for instances, the specific surfaces increase considerably thereby allowing intimate mixture etc. etc. but except in very rare instances, the substance remains what it was. The product keeps its original character, molecular structure, chemical identity etc. etc. We are therefore, not satisfied that the demand for duty was sustainable. The matter was again disputed by Department for a subsequent period and Tribunal in it order in appellant s own case CCE. C., SURAT-I VERSUS GUJARAT RECLAIM RUBBER PRODUCTS LTD. [ 2005 (11) TMI 114 - CESTAT, MUMBAI] has held in favour of the appellant holding that the said process does not amount to manufacture. The Commissioner (Appeals) has relied solely on Circular of CBEC explai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was amended by adding an explanation that for the purposes of this clause, 'goods' include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. 2.1 Learned Counsel argued that both the lower appellate authorities have travelled beyond the scope of the SCN, in as much as, the OIO as well as OIA refers about the definition of manufacture whereas the SCN refers only about the definition of 'Excisable Goods . It has never been the case in the SCN that the process being carried out amounts to manufacture. It is also further submitted that both the lower authorities have erred in relying on the expression incidental or ancillary used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has reagitated the issue particularly when they do not dispute that the process to obtain the said product does not amount to manufacture and when it is not the case of the department that the appellant has changed the process to obtain the said product. 2.5 Learned Counsel argued that the appellant further submit that the reliance was wrongly placed on the Explanation to the definition of Excisable Goods in as much as the said Explanation is in respect of the marketability of the goods and was not in respect of the manufacture of the goods. In the instant case, the appellant do not dispute about the marketability as they sell the said product in the market and thereby the product has market. 2.6 Learned Counsel argued that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ltd. - 2010 (256) ELT 523 (Bom.) [The department's appeal was rejected by the Hon'ble Supreme Court reported in 2015 (326) ELT A86 (SC)] 2.9 Learned Counsel argued that Further, in catena of judgements, it has been held that a product to be excisable must satisfy twin criteria; one of manufacture and the other of marketability. The appellant place reliance on the following judgements: UOI V/S Ahmedabad Electricity Company Ltd.-2003 (158) ELT 3 (SC) Markfed Vanaspati Allied Indu. V/s CCE-2000 (116) ELT 204 (T-LB) CCE VS. Markfed Vanaspati Allied Indu.- 2003 (153) ELT 491 (SC) CCE V/S Indian Aluminium Ltd.-2006 (203) ELT 3 (SC) Madras Aluminium Company Ltd. V/S CCE - 2006 (193) ELT 98 (T) Uttam Steel Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The factory, Gujarat Reclaim Rubber Products Ltd., Ankleshwar (Gujarat) cleared some quantities of goods they call hard rubber. This hard rubber is obtained by crushing waste rubber into powder. At the time of the argument on 27- 9-1983 the Counsel for the appellant raised a number of arguments in favour of the appeal. One of the argument was that the crushing of the hard rubber did not amount to manufacture as there was no chemical change or reaction and the new product was chemically and in all other properties the same as the rubber from which it was obtained except that it was in powder form. 3. The learned Counsel for the department however opposed the argument saying that the crushing operation produced a powder form f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the powder formed by crushing the old rubber is neither commercially nor chemically a new product. Learned Counsel for the petitioner contends that the Tribunal has held that the powdered rubber is not a new product merely because no chemical reaction is involved in the process of crushing and that this is erroneous. This is a very narrow reading of the Tribunal s order. The Tribunal has not only given a finding that the powder is secured by a mere process of crushing but also that the crushed product was not a new product. This is essentially a finding of fact. We, therefore, dismiss the appeal. The matter was again disputed by Department for a subsequent period and Tribunal in it order in appellant s own case reported at 2006 (195 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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