TMI Blog2005 (11) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... etter appreciation we reproduced the relevant paragraph of the Commissioner (Appeal) orders :- "I observe that the appellants are manufacturers of reclaim rubber products falling under Chapter sub heading No. 4003.00 and the old tyres etc. are required for the process and are cut into pieces. Subsequently, cut pieces are sieved and small pieces are segregated. Such small pieces are crushed and the 'crumb rubber powder' is obtained and it is also known as tread rubber powder. The appellants have been following this process for quite sometime and paying nil rate of duty in view of the CEGAT judgment in their own case. However, they received a show cause notice dated 28-12-1998 which was confirmed by the A.C.C.E. Ankleshwar, who placing reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this context, it is also relevant to note that as reported by the appellants, in respect of another factory of theirs at Solapur, the show cause notice issued in this regard was discharged by the Assistant Commissioner holding the classification in their favour. Moreover, it can be seen that the properties of the goods remain same even after crushing, no chemical change takes place during the process and only the physical form is changed. Accordingly, I am of the view that merely changing of the physical form would not amount to manufacture. Finally, coming to the Tribunal decision in the appellants own case, reported in [1983 E.L.T. 2401 (CEGAT), the Tribunal had held that old rubber crushed into powder is not manufactured and crushing/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, it has been held that the process of crushing old rubber does not amount to manufacture. The position would not change under the new Tariff inasmuch as the basic criteria of the goods being the result of manufacturing activity is required to be satisfied first. The Hon'ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh-I v. Markfed Vanaspati Allied Indus. [2003 (153) E.L.T. 491 (S.C.)] has held that the burden to prove that there is manufacture is on the Revenue and merely because an item falls in a tariff entry, manufacture must not be deemed. 3. As such, we find that the view adopted by Commissioner (Appeals) is in accordance with law declared by the Hon'ble Supreme Court and cannot be faulted upon. As su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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