TMI Blog1980 (4) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... y and functionally complete. The petitioner installed these record changer decks on a wooden base manufactured by the petitioner, or at its order, and sold them under the trade name of "Bush Auto Changer". At all relevant times, import duty was payable on the record changer decks imported by the petitioner-company. Countervailing duty was also payable under the provisions of the Indian Tariff Act. For the purpose of the payment of the countervailing duty, the imported record changer decks were treated as being in a fully assembled condition and no as components and parts of record changers or gramophones. The petitioner-company was accordingly assessed to countervailing duty at 20% which it paid, and not at the countervailing rate of duty at 30% which would have been payable had the record changer decks been treated for the purpose of countervailing duty as components or parts of record changers or gramophones 3. On 9th July, 1966, Central Government issued a Notification No. 112 of 1966 whereunder all parts and accessories of electrically or battery operated gramophones, record players, etc., other than turn-tables, were entirely exempt from the payment of Central Excise duty. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal hearing, the Joint Secretary to the Government of India passed his impugned order dated 10th October, 1975, rejecting the revision petition, holding that- "...the Bush Auto Changer, as named by the petitioner for their product under consideration in this case, comes into shape designed for the trade in the cabinets especially made for the purpose. Also, the petitioners obtaining facility of proforma credit under Rule 56A would show that the finished product is an excisable commodity under the Tariff. The Government of India, therefore, observes that the order-in-appeal is correct in law and based on the facts of the case." To complete the narration of events, here it may be stated that the petitioner-company paid Central Excise duty on the Bush Auto-Changers from 1st July, 1971 till 31st October, 1975. The petitioner-company had also availed itself of the credit facility under Rule 56A and had set of against the excise duty allegedly payable upon the Bush Auto-Changers, the countervailing duty paid by the petitioner-company on the record playing decks. The aggregate amount of excise duty paid by the petitioner, the aggregate amount of credit availed of by the petitioner und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated times out of number by the Supreme Court and various High Courts that it is not open to an authority to urge in its affidavit-in-reply a ground not taken in the order sought to be impugned and thereby seek to make out a new case in justification of the impugned order. All the greater reason, when as in this case, the justification is attempted by an altogether different officer, other than the authority which passed the impugned order. In paragraph 4 of the affidavit-in-reply, the process of manufacture is sought to be imputed to the petitioner-company because it sold the record-changers imported by it after fixing them on a wooden base with the petitioner's trade name of "Bush Auto-Changer" Paragraph 4 of the affidavit-in-reply concludes with the averment that the record-changer decks as imported are distinct from the record-changers marketed by the petitioner- company. Here it may be stated that while in the pleadings the phraseology used is "cabinet", it is common ground that what is thereby meant by the parties is a wooden base (with or without a cover) on which the imported record-changer decks were fixed. 6. There is considerable substance in the contentions urged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation: a new and different article must emerge having a distinctive name, character or use." (The italicising is ours.) The decision in the Delhi Cloth Mills case was followed by the Supreme Court in S.B. Sugar Mills v. Union of India, A.I.R, 1968 Supreme Court 922 = 1978 ELT (J 336) where at paragraph 14 of the Report, it was observed as under : "The Act charges duty on manufacture of goods. The word 'manufacture' implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use ....." (The italicising is ours.) This ratio laid down by the Supreme Court in the Delhi Cloth Mills case and the S.B. Sugar Mills case applies on all fours to the facts of the matter before us. By no stretch of imagination can the petitioner before us be said to have brought into existence a new and different article having a distinctive name, character or use, merely by putting such imported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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