TaxTMI 
TaxTMI 
1986 (6) TMI 191
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....on behalf of the respondent, the Court made the following order :- The petitioner is a partnership firm carrying on business under the name and style of S.P.S. Jayaram & Company manufacturing 'Gopal Tooth Powder'. It has come forward with this proceeding under Article 226 of the Constitution of India for the issue of a writ of mandamus or any other order or direction in the nature of a writ of mandamus directing the respondent not to apply any of the provisions of Act 1 of 1944 and Act 5 of 1986. 2. To sustain the relief claimed in this petition, Mr. U.N.R. Rao, learned Senior Counsel for the petitioner urged 4 points, 2 of them touching on the maintainability of the proposed action by the respondent to assess the petitioner's products named 'GOPAL TOOTH POWDER (PACKETS), GOPAL TOOTH POWDER (TIN BOUND) and JBT TOOTH POWDER' to excise duty while the others relating to the merits. Yet another contention is that the respondent is disabled from taking any action against the petitioner by virtue of the doctrine of 'equitable estoppel'. 3. It is convenient to advert to the arguments relating to maintainability. On an earlier occasion, the petitioner approached this Court in ....
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....h as fresh facts are brought on record or the process of manufacture has changed or the relevant Tariff entry has undergone modification or subsequent to the earlier decision, there has been a pronouncement of a High Court or the Supreme Court which necessitates the reconsideration of the issue. In this case, as rightly pointed out by Mr. Jothi, learned Additional Central Government Standing Counsel, there is a change in the principle of law. In the supplemental affidavit filed on behalf of the petitioner in W.P. No. 4894 of 1978 S.P.S. Jayaram and Company rep. by Managing Partner/S.P.S. Salvaraj v. Assistant Collector of Central Excise, Madurai-14, the petitioner has referred to the definition of Section 2(m) of the Factories Act and submitted that the petitioner's premises where the manufacturing process is carried on will not fall under the said definition. The case of the respondent herein is that proceeding as could be seen from his counter is that the petitioner's premises is a factory manufacturing goods and is not exempted from the levy of excise duty because its clearance in the year 1976-77 had exceeded Rs.30 lakhs. It is further stated in the said counter that the petiti....
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.... by Sunderson Pharmaceuticals (Analytical Division), Government Approved Laboratory, Korpogam House, Madurai-14 to the effect that 'Gopal Tooth Powder' is of standard quality as defined in the Act and the rules made thereunder. The certificate was issued under the Drugs and Cosmetics Act, 1940 and the rules made thereunder. These two documents will fairly establish that the products manufactured by the petitioner not only conform to Indian Standard specifications but also the provisions of the Drugs and Cosmetics Act and the rules made thereunder. Consequently, the contention that the respondent cannot invoke to his aid the provisions of the Excise Act to levy excise duty on the products of the petitioner has to be rejected. 6. Let me now turn to the argument relating to 'equitable estoppel'. I hasten to add that the basic ingredient necessary to sustain the principle of equitable estoppel is wholly absent in this case. It is too difficult to find from the averments in the affidavit of the petitioner or from the documents produced by it that there was any representation either in words or by conduct of the respondent which was acted upon by the petitioner. Unless this basic i....
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....f ash into tooth powder is a manufacture within the meaning of Section 2(f) of the Central Excises and Salt Act, 1944. Section 2(f) reads : "Manufacture includes any process incidental or ancillary to the completion of a manufactured product". I am excluding the other sub-sections as they are not relevant for my present purpose. As rightly pointed out by the Rajasthan High Court in Ramnugar Cane and Sugar Company Ltd. Jaipur and Others v. Union of India and others, (1983 E.L.T. 6) the definition of 'manufacture' is inclusive and the eight clauses appended to the definition are merely illustrative and not exhaustive. In my interpretation the ingredients of a manufacture as visualised by Section 2(f) are : (a) There must be a transformation; (b) From such transformation, a new and different article must emerge, and (c) Such new article must have a distinct name as a commercial commodity of its character or use should be different from its component part or parts. 9. Before I proceed further, it is convenient at this stage to advert to the argument advanced by the learned Senior Counsel for the petitioner to the effect that unless tooth powder is 'dentifrice' it will not come ....
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....ufacture when the ash is transformed into tooth powder as contemplated by Section 2(f) of the Act. In this case, there is a transformation when ash is converted into tooth-powder. In other words, a new and different article emerges and such new article has a distinct name as a commercial commodity, i.e., what was ash originally is turned into tooth powder. It is needless to state that these are two different commercial commodities commonly or popularly known. After ash, Vibuthi is transformed into tooth powder, its use as well as its character become different. In other words, there is such a transformation as to produce a different article which bears by itself a commercial name quite different from its component part and is put to use different from its component part. The learned Senior Counsel for the petitioner would point out that even now ash is being used for cleaning teeth. I must immediately state that such use is only out of necessity. To put it differently, when the user has no means to buy tooth powder or when the tooth powder is not readily available, resort is made to the use of ash. It may not be out of place to point out that even the charcoal powder or brick powde....
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....India v. R. Mansukhrai, EBWARI - [(1978) 2 S.C.C. 472 at 477). "The word 'manufacture' is defined in Section 2(f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26-A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never hold to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the Legislature itself as manufacture of circles". 12. As a matter of fact, I had the benefit of a recent ruling of a Division Bench of this Court to which I was als....