Marble cutting is not manufacture, and refund follows only from a recognised protest date under excise law.

Cutting, sawing, edging, trimming and polishing marble blocks into slabs or tiles did not create a distinct commercial commodity with a different name, character or use, so the process was not manufacture and central excise duty was not leviable on that activity. On refund, a protest need not be in any prescribed form if the objection to duty is clearly communicated and accepted; payments made after such recognised protest were not voluntary. Refund relief was therefore available only prospectively from the date the protest was treated as effective, while the pre-protest period remained time-barred.

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Issues: (i) Whether cutting marble blocks into slabs and tiles amounted to manufacture liable to central excise duty; and (ii) whether the refund claim was barred by limitation for the period prior to the protest.

Issue (i): Whether cutting marble blocks into slabs and tiles amounted to manufacture liable to central excise duty.

Analysis: The earlier Tribunal decision holding that sawing, cutting, edging, trimming and polishing marble blocks does not bring into existence a distinct commercial commodity was treated as governing the dispute. The order of the Supreme Court dismissing the Revenue's civil appeal was relied upon as confirming that view, and the principle of merger was applied. The process did not result in transformation of marble into another commodity with a different name, character or use.

Conclusion: The activity did not amount to manufacture, and duty was not leviable on the marble slabs and tiles on that basis.

Issue (ii): Whether the refund claim was barred by limitation for the period prior to the protest.

Analysis: The correspondence on record showed that the assessee's objection to duty payment was ultimately accepted as a protest by the department. Applying the principle that no particular form of protest is prescribed under the excise protest procedure, the payment made after the protest could not be treated as voluntary. However, the period before the protest did not enjoy that protection.

Conclusion: The refund was admissible only from 21-6-1982 onward, and the pre-protest period remained time-barred.

Final Conclusion: The appeal succeeded to the extent that excise duty was held not payable on the marble-processing activity, and refund relief was granted prospectively from the date on which payment under protest was recognised.

Ratio Decidendi: Mere cutting and polishing of marble blocks into slabs or tiles does not create a distinct excisable commodity, and a protest against duty need not be in any prescribed form if the objection is otherwise clearly communicated and accepted.

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