1990 (5) TMI 115

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.... paid rejected goods from their customers as under :- (a) 404 bags of 'White Dextrine' originally cleared on payment of duty under G.P.I. Nos. 1134 and 1135 dt. 8-8-1981. (b) 12 bags of 'White Dextrine' originally cleared on payment of duty under G.P.I. Nos. 1184 and 1185 dt. 13-8-1981. (c) 20 bags of 'Mapropharm Starch' cleared on payment of duty under G.P.I. No. 2957 dt. 19-3-1982. They, therefore, filed D-3 No. 21 dt. 12-12-1981, No. 26 dated 11-1-1982 and No. 3 dated 28-5-1982 under Rule 173-H and accounted for in Form V register. The above goods were further reprocessed as a result of which 'White Dextrine' had turned into 'Yellow Dextrine' and 'Mapropharm Starch' was rebagged after seiving into 'Maize Starch Powder'. The r....

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....the ratio of the decision of the Tribunal in the case of Collector of Central Excise, Bhubaneswar v. Orissa Cement Co. Ltd. [1984 (17) E.L.T. 161 (Tribunal)], allowed the appeal accepting the contention that the reprocessed goods were for all purposes the same goods which were received back in their factory. Further he did not agree with the Assistant Collector that period of 5 years was applicable under Section 11A and accordingly, he set aside the order of the Assistant Collector. Aggrieved by this order, the Department has come before us by way of this appeal. 3. We have heard Shri L. Narasimha Murthy, learned JDR for the appellant and Shri N.I. Mehta, learned Advocate for the respondents. 4. It was contended by Shri Narasimha Murt....

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....f the goods and furthermore both the items are classifiable under the same Tariff Entry and the reprocessed goods cannot be subjected to duty as a separate commodity under the excise law. He contended that a mere change in the physical form, shape or substance of a commodity, would not by itself lead to conclusion that the new article had been manufactured. He said that this issue is well covered by the series of the decisions of this Tribunal as well as by the Supreme Court relating to Rule 173-H of Central Excise Rules as well as on main issue in determining the characteristics of the new identifiable goods. In support of his contention he cited the following cases :- 1. Collector of C. Excise v. Fordham Pressings (India) Pvt. Ltd....

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....ality of the said goods, the goods in question were obtained by application of process without changing the characteristics and propriety of returned goods. This factual position was not rebutted by the Department with any evidence. Then question remains whether it amounts to a manufacture. The Supreme Court had time and again dealt with this issue and it was held that "manufacture implies a change but every change in the raw material is not manufacture and yet every change of an article is the result of treatment, labour or manipulation. But something more is necessary and there must be such a transformation of a product (raw material) that a new and different article must emerge having a distinct name, character or use. Therefore, manufac....