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TMI Blog1992 (3) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court had disposed of the same vide Civil Appeal No. 2611/86 by Order dated 12-2-1986. He pleaded that the judgment given by the Hon ble Supreme Court had been duly reported in 1986 (9) ECR 544 (SC) - Collector of Central Excise v. M/s. Fine Marble Minerals P. Ltd., Makrana. Shri C.S. Lodha, learned advocate drew attention of the Bench to the operative part of the Order which appears on the bottom of 1986 (9) ECR 544 (SC) and argued that the edited version narrated by the reporter in the decision are not identical with the facts of the matter as given by the Tribunal in 1985 (22) E.L.T. 128 (Tri.) para 7. He argued that the Tribunal should look at the decision of the Hon ble Supreme Court as appears on page No. 20 of the paper book. He argued that the Doctrine of Merger applies. The decision given by the Tribunal gets merged in the Order passed by the Hon ble Supreme Court. Shri Lodha pleaded that the Tribunal in para 7 of its judgment had observed that the process of cutting marble block into marble slabs has been set out in the earlier paragraph. Para 7 of the said judgment is reproduced below :- We have to analyse in the light of legal principles set out above, whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 8 to 11 of the paper book. He lastly referred to the page No. 12 of the paper book which is a letter dated 16-12-1982 written by appellant to the Assistant Collector and the Assistant Collector s office, in reply, had intimated to the appellant vide letter dated 19-1-1983 that the appellant s request for payment of duty, under protest, has been acceded to. Shri Lodha argued that the period involved, in dispute, is Dec., 1981 to June, 1984 and he fairly stated that from December, 1981 to June, 1982, there was no protest and as such the claim is hit by limitation for this period. He argued that the refund claim was filed on 5-6-1986 which appears on page No. 24 of the paper book. Shri Lodha, in support of his submissions for payment of duty under protest relied on a decision of the Supreme Court in the case of India Cements Ltd. v. Collector of Central Excise, reported in 1989 (41) E.L.T. 358 (SC). He argued that the manufacture of tiles had started from Nov., 1982. Shri Lodha argued for the acceptance of the appeal and consequential relief thereof. He also cited the decision of the Tribunal in the case of Sangmermer India Pvt. Ltd. v. Collector of Central Excise reported in 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minerals Pvt. Ltd., Makrana cited supra. Para 7 of the said decision has been reproduced above. Paras 8 and 11 from the said judgment are reproduced below :- Marble" as noticed from Encyclopaedia Britannica often occurs as metamorphic rocks. The quarry of marble is very limited. Channelling machines are utilised to make cuts wide and deep. The marble blocks, outlined by joints and cuts are separated by driving wedges into drill holes. It further reads mill-sawing into slabs is done with sets of parallel iron blades that move back and forth and are fed by sand and water. The marble may be machined with lathes and carborundum wheels and is then polished with increasingly finer grades of abrasive. It is, therefore, seen that only after machining and polishing and such other process are applied to the cut slabs, do they become a marketable commodity viz. marble tiles . In short, the manufacture of an article known as marble could be said to be complete only after all or most of these processes are undergone to result in a distinctly different commodity." We must also say that this is a case of show cause notice being issued by the Government to review the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rry. They are cured in water for a week. Thereafter, they are sent underneath the sawing machine. During the course of sawing, a continuous flow of water is allowed. After the slabs are cut and polished, other refined techniques are adopted to complete manufacture of the slabs. On behalf of the respondents in that case, it was argued in para No. 5 that identity of the cut slabs did not result in any change, and continued to be known in trade circles as marble throughout. Unless the product has a distinct name, character and use, mere process cannot be construed as a manufacturing activity. There could be no manufacture if during the several changes in processing there is a continuing, substantial identity. The Tribunal had come to the conclusion that The marble slabs that are merely sawn from the marble blocks cannot be called a distinct commodity. The end-product which would come into existence after the activity is completed, would still be called marble . Thus, the original identity continues despite the several processes undergone. In the trade circles, marble slabs or the marble tiles that are manufactured after cutting the edges, trimming, polishing and other processes, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly it was pleaded that if it amounts to manufacture, it should be deemed as handicrafts . The Tribunal in para No. 14 of the said judgment had dealt with at length and in the last line of the para No. 14 the Tribunal had observed that we may note that the Consultant for the appellants also did not put forward any serious arguments in this regard before us. We are of the view that the ratio of this decision will not apply to the facts of the present case. Now coming on the plea regarding representation for grant of refund for the period December 1981 to 21-6-1982, learned advocate conceded that the payment was not made under protest. There is complete correspondence in this regard which appears from page No. 1 to page. No. 12 of the paper book and which has been discussed above. Hon ble Supreme Court in the case of Indian Pistons Ltd. v. Collector of Central Excise reported in 1990 (46) E.L.T. 3 (S.C.) in para No. 10 has held as under :- Mr. Ganguly next drew our attention to Rule 233B of the Central Excise Rules, 1944 which lays down the procedure to be followed when duty is paid under protest. The provisions of this rule, however, are of no relevance here because it has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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