2004 (12) TMI 431

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.... taking into consideration the grounds of cross-objection filed by them. We, therefore, heard Shri V. Valte, learned S.D.R. and perused the records. 3. The learned SDR submitted that the respondents manufacture Dobby Designer Cards without registering themselves as manufacturer with the Central Excise Department; that the Commissioner (Appeals), under the impugned Order, has held that dobby cards are manufactured from designed rolls of plastic and paper procured from outside on payment of duty and thus the respondents are eligible to avail of exemption under Notification No. 53/88-C.E.; that the benefit of this Notification is not available as the condition specified in the notification to the effect that the final product should be....

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....dobby cards for specific design for his own use and once dobby cards are punched they are not useful for any other manufacturer; that, thus, punched dobby cards are not marketed. Finally, they have submitted that Notification No. 53/88-C.E. exempts goods falling under Heading 39.26 provided the goods have been made out of goods falling under Headings 39.01 to 39.15 on which duty of excise has been paid and no credit of duty has been availed of; that the fact is that the plastic dobby cards are made of polyester films which are made of goods falling under Headings 39.01 to 39.15 and as such the benefit of the Notification is available. Reliance has also been placed on the Board's Circular No. 44/90 CX.3, dated 22-8-1990. 5. We have c....

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....name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate, commodity having its own character, use and name, whether be it the result of one process or several processes, 'manufacture' take place and liability, to duty is attracted". Applying this test laid down by the Apex Court, we hold that a new commodity commercially known as distinct and a separate commodity having its own character, use and name emerge by punching the dobby cards. Therefore, the process amounts to manufacture. The question of marketability has already been settled by the Tribunal in the case of Hindustan Spinning and Weaving Mills v. Collector, 1998 (104) E.L.T. 650 (T) wherein the Tribunal has held....