TMI Blog2005 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture. The Hon'ble Supreme Court in the case of U.O.I. v. Ahmedabad Electricity Company [ 2003 (10) TMI 47 - SUPREME COURT] as held 'cinder' as 'non-excisable' even though cinder was mentioned as one of the exempted product in Notification No. 76/86-Central Excise dated 10-2-1986. Similarly in the case of Commissioner v. Markfed Vanaspati and Allied Industries [ 2003 (4) TMI 98 - SUPREME COURT] , it was observed that mere mention of a product in tariff entry is no ground for holding the same to be manufactured and the onus to prove manufacture is on the Revenue. We do not find any evidence produced by the Revenue to discharge such burden except referring to the notification. Having held that there is no manufacturin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order per : Archana Wadhawa, Member (J)]. - Both the appeals, one filed by the appellant and other by the Revenue are being disposed off by a common order as they arise out of the same impugned order passed by Commissioner (Appeals), vide which, on one hand, he has rejected the appellant's refund claim on merits and on the other hand remanded the matter to the original adjudicating authority for re-examination of the claim on the point of unjust enrichment on the ground that the goods, in respect of which refund claim was made, were being used captively in the process of textiles and there was no stage of passing on the burden of duty to the customer. 2. We have heard Shri Prakash Shah, ld. Counsel for the appellant und Shri Hitesh Shah, ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to duty. Mere existence of Notification No. 191/68-Central Excise, upto a certain period and subsequent withdrawal by the same will not, by itself, confer the status of manufacture to the recovery process, if the same cannot be independently considered as manufacture. It has also been argued that they started with caustic soda and through the intermediate process of emergence of spent caustic soda lye, recovered caustic soda only. As such, the starting material and the final material being the same i.e. caustic soda, it cannot be said that any manufacture resulting in emergence of new product has taken place. It is their contention that caustic soda recovered from the lye is already duty paid caustic soda received by them initially. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant by increasing the concentration of spent caustic soda lye does not amount to manufacture inasmuch caustic soda itself was the initial product used for mercering the fabrics. No new product different and distinct from the initial product can be said to have been emerged. 6. The reasoning of the lower authorities that the existence of notification exempting the product is conclusive to show that the product was excisable and as such, has correctly discharged duty burden, on exemption being withdrawn, does not appeal to us in as much, the product for being held as excisable, needs to satisfy the basic criteria of manufacture. The Hon'ble Supreme Court in the case of U.O.I. v. Ahmedabad Electricity Company - 2003 (158) E.L.T. 3 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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