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TMI Blog1990 (6) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of manufacture. The appellants categorise such waste in four categories viz. siporex waste, siporex powder, siporex aggregate and siporex broken. They filed a classification list (allegedly on the direction of the Superintendent of Central Excise on 1-8-1979) for these four items claiming Nil rate of duty on the ground that these were waste material not covered by the Central Excise Tariff. The Central Excise authorities classified these goods under Tariff Item 68. The appellants appealed to the Collector of Central Excise (Appeals) who upheld the classification in respect of siporex waste, siporex broken and siporex aggregate but held that siporex powder was exempted. Hence the present appeal. 2. We heard Shri N.D. Khosia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Pyrites Phosphates Chemicals Ltd., New Delhi v. Collector of Central Excise, Delhi reported in 1983 (13) E.L.T. 1192 (CEGAT) as the judgment held that crushing of rocks amounted to manufacture and there was a new product, the facts in the present matter being different. He also submitted that the Collector s reliance on U-Foam Ltd., Hyderabad v. Collector of Central Excise, Hyderabad reported in 1983 (14) E.L.T. 2502 was also wrong as the trimmings and cuttings of polyurethane foam were used for the same purpose as foam and such is not the situation here. In sum the learned Consultant submitted that as no manufacture is involved in respect of these products excise duty was not leviable. 3. Shri Chakraborty, the learned DR opposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order. 4. Referring to the plea of the appellants for the benefit of Notification No. 179/77 (for siporex broken) Shri Chakraborty argued that though power might not have been used for the production of siporex broken the primary goods used power and siporex broken arises in the course of manufacture. Therefore, the origin of the goods was through power. 5. Referring to the reliance of the appellants on the Tribunal s judgment in Gayathri Glass Works (supra) wherein broken glass was held to be not excisable. The learned representative argued that another judgment of a Bench consisting of 3 Members (there were two Members in Gayathri Glass Works), the Tribunal held that broken glass was excisable. This was in Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between these two positions there was no power used. He submitted that orders in Gayathri and Hindustan Scientific and Fancy Glassware Works and Another were different and referred to a judgment of the Bombay High Court in Tata Mills Ltd. v. The Union of India reported in 1980 (6) E.L.T. 76 (Bom.). He further submitted that bagasse having been included in the tariff its excisability was beyond question. 7. We have considered the submissions. In so far as siporex powder is concerned the impugned order has already given the appellants relief by holding that it was exempt from duty. Therefore, there is no necessity for us to go into the academic question of whether or not it is excisable. 8. In this context we have considered the rival su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct which has suffered duty under Item 68. In para 12 of the judgment the Tribunal held, inter alia, that in no case is the end product a baser commodity than the material from which it is made; it is always better, more valuable, more finished. The next paragraph of the same judgment records the observation that Spent earth lost the virtues it had as an activated earth. In paragraph 14 of the same judgment the Tribunal further took note that the activated earth from which spent earth is obtained already paid duty under Tariff Item 68. It was for all these reasons that the Tribunal held as it did. No such facts were brought before us in the present matter. 11. In CCE, Kanpur v. Gayathri Glass Works (supra) a two Member Bench held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appropriate sizes within the range of two inches. Therefore, there is manipulation and there is a new product as especially indicated by the size of the goods. Shri Chakraborty s submission that the grounds of appeal relating to siporex aggregate clearly show that even according to the appellants the product is the outcome of a process of crushing with the aid of power is correct. 14. Siporex broken which is obtained from siporex waste is admittedly broken into appropriate sizes [appellant s own words before the Collector (Appeals)]. The argument that no power is used in breaking into appropriate sizes does not help the appellants as it is what happens from the raw materials stage to the end product that is to be seen and not only a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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