TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 388
X X X X Extracts X X X X
X X X X Extracts X X X X
....after grinding process. There is no chemical reaction in the crushing process. By this process, only physical form is changed. During the relevant period, the appellant had cleared the said crumb rubber powder at Nil rate of duty as it was not a process of manufacture as decided long back by the Hon'ble Tribunal in their own case and subsequently ratio of the said Judgement was also upheld by the Hon'ble Supreme Court. In the instant case, the SCNs have been issued proposing to demand C. Ex. duty on the said product relying on the definition of 'Excisable Goods' as prescribed under clause (d) of Section 2 of the CEA, 1944 which was amended by adding an explanation that for the purposes of this clause, 'goods' include....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eady been decided in the appellant's own cases which are as under: * Gujarat Reclaim Rubber Products Ltd. Vs. CCE-1983 (14) ELT 2401 (T) [The department's appeal was rejected by the Hon'ble Supreme Court reported in 1990 (45) ELT 467 (SC) * CCE Vs. Gujarat Reclaim Rubber Products Ltd. -2006 (195) ELT 44 (T) * Gujarat Reclaim Rubber Products Ltd. Vs. CCE-2009 (243) ELT 426 (T) 2.4 In the cases referred at Sr. No. (ii) & (iii), the department has not challenged the orders of the Tribunal before the Supreme Court. Thus, though the issue has been settled by the Hon'ble Supreme Court and Tribunal, the department has reagitated the issue particularly when they do not dispute that the process to obtain the said product does ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....turing process. Now, in absence of manufacture of any goods, how Central Excise duty can be demanded on such goods even if a is marketable 2.8 Learned Counsel argued that it is also submitted that once it has been accepted by the department that the process does not amount to manufacture, the same issue cannot be re-agitated. This what the Horble High Court of Andhra Pradesh has held, in case of CCE V/s Aurobindo Pharma Ltd. 2010 (259) ELT 673 (A.P.). In this context, the reliance is also placed on the following judgements. * Birla Corporation Ltd. Vs. CCE-2005 (186) ELT 266 (SC) * CCE Vs. Jain Vanguard Polybutelene Ltd. - 2010 (256) ELT 523 (Bom.) [The department's appeal was rejected by the Hon'ble Supreme Court reported in 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the product as the excisability come solely from the act of manufacture. (3) Earlier in the appellant's own case, it has been held that the process taken by them does not amount the manufacture and Tribunal has involved those case ruled in favour of the appellant and in one case in the Revenue's appeal in the Hon'ble Apex Court has also been set aside. (4) The demands are partly barred by limitation. 4.1 We find that the root of the entire dispute is settled by the Tribunal in appellant's own case as reported in1983 (14) E.L.T. 2401 (C.E.G.A.T)in the said decision the Tribunal observed as follows: "2. The factory, Gujarat Reclaim & Rubber Products Ltd., Ankleshwar (Gujarat) cleared some quantities of goods they call hard rubber. Thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ous with creation of a new product. It is true that crushing does change the physical form as, for instances, the specific surfaces increase considerably thereby allowing intimate mixture etc. etc. but except in very rare instances, the substance remains what it was. The product keeps its original character, molecular structure, chemical identity etc. etc. We are therefore, not satisfied that the demand for duty was sustainable." 4.2 The said decision of Tribunal was upheld by the Hon'ble Apex Court as reported in 1990 (45) ELT A67 (S.C) as observed as follows: "The Tribunal has found that the powder formed by crushing the old rubber is neither commercially nor chemically a new product. Learned Counsel for the petitioner contends that th....