1984 (7) TMI 380

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....vernment of India for disposal as an Appeal in terms of Section 35P(2) of the said Act. 2. The appellants import tungsten wire and molybdenum wire of a higher micron size and draw them to finer sizes, which are supplied as such, as also transferred to their own coiling plant, for being converted into filaments. While drawing the wire, it breaks into pieces which are collected periodically and disposed of as scrap. The appellants say that by a mistake of law they filed a classification list dated 6th September, 1979, classifying these broken pieces as a commodity falling under T.I. 68, CET. On 12th November, 1979, a refund claim was filed as the duty paid from 22-12-1977 to 18-7-1979 was not warranted under law. The Assistant Collect....

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....urt had laid down that for purposes of manufacture, there should be a transformation into a new and different article having distinct name, character and use. None of these ingredients is satisfied in the present case. The Appellate Collector failed to appreciate that such broken bits are only called rejects/scraps/throwaways in the trade. His finding that the broken bits were obtainable during the process of manufacture more or less as by-products is quite erroneous. When wire drawing and coiling is not manufacture and the product is not subjected to duty, the broken pieces will also be outside the purview of excise; In Pio Food Packers (1980 E.L.T. 343 SC), it was held that slicing and canning of pineapple cannot amount to manufacture. In....

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....e. In this case, there is no essential difference between the original and ultimate product and it cannot be said that the goods were not consumed (Pio Food-1983 E.L.T. 443, Bombay). He also stated that there is no evidence to show a change in the characteristics as mentioned by the Appellate Collector. The invoices produced would show that the goods were sold as wire scrap. He relied on the decision of the Madras High Court (1981 E.L.T. 233) where it was held that filaments continue to be tungsten and cannot be treated as parts of lamps since they need further processing. 5. The Departmental Representative Shri Kunhikrishnan stated that duty is being paid on the finished product. So, manufacture is not in dispute. In the case of br....