TMI Blog2002 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... he work done. For the said purpose, it receives nylon yarn from various parties. It twists/doubles nylon yarn on special machine where for the same does not undergo any physical or chemical changes, nor does it lose its original characteristics. According to the petitioner, twisted and doubled yarn continues to be known as yarn and is covered by TI 18(i)(a) of the first Schedule to the said Act. 3.Central Board of Excise and Customs (hereinafter referred to as 'the Board') issued notification bearing No. 24/77, which is in the following terms :- 'TARIFF ADVICE NO. 24/77 F.No. 50/4/77-CX.2 Government of India CENTRAL BOARD OF EXCISE AND CUSTOMS New Delhi , the June 22nd, 1977 . To, All Collectors of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise duty whereupon the petitioner informed the Assistant Collector, Central Excise vide its letter dated 26-2-1981 that it intends to process fish net yarn at its factory at Ahemdabad and does not agree with their view for making payment of excise duty @ 8%. However, the said duty was paid under protest. 5.The petitioner vide letter dated 28-2-1981 again informed the Assistant Collector, Central Excise that nylon yarn for processing to manufacture fish net twine on which duty is already paid, is received from M/s. Nirlon Synthetic, Fibers and Chemicals Ltd., Bombay on job work and the petitioner is doing processing work of twisting the nylon yarn only on job basis and for the said purpose would be charging job charges. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner once again represented his case vide letter 20-4-1981, which is in the following terms:- "INDIAN ELECTRO CHEMICAL LIMITED, AHMEDABAD Ref. No. F-(45)/2809 The Superintendent of Central Excise, Assessment Range II, Division II, Ahmedabad Dear Sir, Re: Request for a Licence u/s 18-Fish Net Twine. We are in receipt of your letter No. CE/VII/61, dated 6th April, 1981, even though, we have given detailed reasons in support of our contention that Fish Net Twine falls under T.I. No. 18 duly supported by the judgment (1980 KLT 320) of the Bombay High Court and evidence and even though we have requested for a personal hearing in the matter, you have passed an order in the matter without granting a personal hearing and without g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive instructions. 14.The question as to whether processing, twisting or doubling of nylon/polyster yarn amounts to manufacture of a new product came up for consideration in Union of India v. Delhi Cloth General Mills Ltd. [1977 (1) E.L.T. J 199 (SC) = AIR 1963 SC 791]. In that decision, the Apex Court has clearly held that for manufacture of goods, it is essential that as a result of the process in question a new and distinctive article, with a distinct use, character and name in the market must result or emerge. 15.No duty on twisting or doubling of yarn can be charged if the same does not undergo any change nor thereby does it become a new or distinctive article, as thereby double duty on the same article would be collected, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case as this, where the claim of the assessee is borne out by the trade inquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burden lay upon the revenue to disprove the said materials by adducing proper evidence. Unfortunately, no such attempt was made. As stated, the evidence led in this case conclusively goes to show that Nylon Twine manufactured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... multi-folded the yarn as a step towards manufacture of fabrics. The appellant's case was that it had been paying duty on doubled or multi-folded yarn but not on single yarn. When called upon by the Excise Department to show cause why duty should not be levied on the single yarn, the contention of the appellant therein was that both single stage yarn and doubled/multi-folded yarn are one and the same goods and inasmuch as it was paying duty on the doubled/multi-folded yarn no duty was payable on the single yarn. The appellate Collector accepted this contention but the Tribunal agreed with the Revenue. This Court, in appeal, did not go into the question whether single yarn or doubled/multi-folded yarn are one and the same goods and observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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