2011 (2) TMI 526 - AT - Central Excise

Manufacture - Classification - Merely because the product is used in the plastic industry, it cannot be held that a new product has emerged - In the instant case, the raw material hydrogenated castor oil is in flake form. The said raw material has been converted into powder form by melting and spraying. No chemical or any other material has been added in the process - Since there is only change in the form and there is no change in the chemical composition, nothing new has emerged so as to constitute a new product with a distinct name, character and use - The Chemical Examiner s Test Report also supports this position that the end product has the same characteristic as the hydrogenated castor oil. - Decided in favor of the assessee

Summary

Issues:
Classification of product under CETA, 1985; Whether the process amounts to "manufacture"; Duty demand and penalty imposition; Chemical composition and characteristics of the product; Time-barred demand.

Classification of product under CETA, 1985:
The case involved the classification of a product named "Lubriplast" under Heading 3812.00 of the Central Excise Tariff Act, 1985. The Department contended that the conversion of hydrogenated castor oil from flakes to powder form resulted in a new product with a specific use in the plastic industry, thus classifiable as a "stabilizer." On the other hand, the assessee argued that since the chemical composition remained the same without any additives, the product should not be classified differently. The lower appellate authority had set aside the duty demand, noting that the product's characteristics remained that of hydrogenated castor oil.

Whether the process amounts to "manufacture":
The crux of the matter was whether the process of converting hydrogenated castor oil from flakes to powder form constituted "manufacture" under the Central Excise Act, 1944. The Department argued that the new product "Lubriplast" emerged with a distinct name, character, and use, thus attracting duty liability. However, the assessee contended that no new product emerged, as confirmed by the Chemical Examiner's report stating the powder retained the characteristics of hydrogenated castor oil. Judicial precedents emphasized that for an activity to amount to "manufacture," a new commercial product with different characteristics must emerge.

Duty demand and penalty imposition:
The Department had issued a show-cause notice demanding duty amounting to Rs. 14,75,761 for clearances made by the party of the product. The adjudicating authority confirmed the duty demand, imposed a penalty under Section 11AC of the Central Excise Act, 1944, and demanded interest. However, the lower appellate authority set aside the duty demand, observing that no new product had emerged from the manufacturing process undertaken by the party.

Chemical composition and characteristics of the product:
The key argument revolved around the chemical composition and characteristics of the product "Lubriplast." The assessee maintained that since no additives were added during the process of converting hydrogenated castor oil from flakes to powder, the chemical composition remained the same. The Chemical Examiner's report supported this claim, stating that the powder exhibited the characteristics of hydrogenated castor oil, indicating no significant change in the product.

Time-barred demand:
The assessee contended that the demand for duty was time-barred, as the department was aware of the manufacturing process since 1997 when the classification declaration was filed. They argued that no facts were suppressed from the department, and the adjudicating authority erred in invoking the extended period of time for demanding duty. The lower appellate authority also considered this aspect while setting aside the duty demand.

In conclusion, the Appellate Tribunal upheld the lower appellate authority's decision, rejecting the department's appeal. The Tribunal found no new product emerged from the process of converting hydrogenated castor oil into powder form, as the chemical composition and characteristics remained unchanged. The judgment emphasized the requirement for a distinct name, character, and use for an activity to constitute "manufacture," citing relevant judicial precedents.