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TMI Blog1992 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... eading 5304.00 would not include such jute waste and thereby allowed the appeal. I find that the said order has not been reversed or annulled by any higher appellate authority. Under this circumstances, in the instant case, I hold the same view and allow the appeal in favour of the appellant. The order of the Superintendent is set aside . 2. In Appeal No. 1904/91-D, the assessee is aggrieved with the order-in-appeal passed by the Collector of Central Excise (Appeals), Calcutta which is as follows - I have gone through the facts of the case, the grounds of appeal and the submission of the appellant during hearing. Previously, this issue was decided in favour of the appellant by the Collector (Appeals) but since it has been clarified by the Government of India under Board s letter F. No. 53/1/90-CX.I dated 11-9-1990 that since Jute Caddies are agglomerated mass essentially composed of Jute fibres and as jute fibres has been exempted under Notification No. 52/87 dated 1-3-1987 if used for captive consumption therefore, Jute caddies which are short jute fibres, classifiable under sub-heading 5304.00 and they are also eligible for exemption under Notification No. 52/87 if used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as manufactured product. They further contended that Headings 5302 and 5304 read together, would clearly show that the jute fibre does not come under any of the headings in Chapter 53 of the Tariff as there is no specific mention of Jute fibre in Chapter 53 of the Tariff and that they also relied on the decision of the Tribunal in the case of Mi/s. Punjab Industries v. Collector of Central Excise, Meerut -1989 (43) E.L.T. 314 (Tri.)] = 1988 (16) E.C.R. 63 in which it had been held that the ....... process does not amount to manufacture, if the commodity retained its original characteristics and unless there is manufacture, no question of excise duty was leviable. 5. The Assistant Collector after giving an opportunity of hearing, has held that the jute caddies are basically processed jute fibre and are different from raw jute. He has held as regards the assessee s contention pertaining to classification that the assessee s ground is not tenable because of the fact that even though the subject product can be called a jute fibre, waste of short length collected at different stages of manufacturing process is still excisable. In this context, the learned Asstt. Collector has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgone treatment indicating their use as textile materials and arise during crushing, carding, combing, spinning or weaving of jute yarn and fibres. He has further stated that jute caddies are generally used by buyers for padding, filling, stuffing, felt making and manufacturing of decorative items. He has further held that jute caddies have a distinct use and are marketable and hence, they are different from raw jute as they have a separate identity. 9. The assessee being aggrieved by this order, has filed an appeal before the Collector (Appeals) who has passed the order noted above. 10. We have heard Shri A.K. Sil learned advocate for the appellant-assessee and Shri J.N. Nair, learned DR for the Revenue. Shri Nair, DR submitted that the goods - jute caddies are marketed and sold to outside parties by the assessee. The buyers are manufacturers of card board, packing etc. As the product is marketable and useful and not disposed of as rejects or scraps, hence, they are excisable commodities. He has also relied on the Board Circular No. 21/90 dated 11-9-90 by which the Board has clarified that caddies are short fibres classifiable under T.I. 5304 and if they are captively consumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling rendered in the case of Plastic Packaging Ltd. v. Collector of Customs [1991 (51) E.L.T. 271]. He contended that the legislature had in its wisdom incorporated a sub-heading for waste in T.I. 5302.10. There is also a sub-heading for residuary Other under T.I. 5302.90. He contended that if the item was not to be classified as waste, then it should be brought under T.I. 5302.90 .as other . He also referred to the definition of waste as given in Section XI, 13-C of the Central Excise Tariff Act, 1985 which reads as follows - Waste" of sub-heading Nos. 5302.10 and 5607.11 shall mean - (i) A tangled mass of short lengths not capable of being disentangled without considerable labour; or (ii) Short lengths not exceeding 1.8 metres, even if they are not in the form of a tangled mass and not capable of being used in the manufacture of rope or cord". He contended that the product does not come within the sub-heading 5304 as it is not a Other physical textile fabrics and yarn thereof, paper yarn". He contended that by implication, this sub-heading 5304 is excluded. He further contended that the Board s circular cannot be relied upon for the purpose of classification as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use 15. It is helpful to consider also in this connection the ordinary meaning of the word goods . For, by the very words of the Central Excises and Salt Act, 1944 excise duty is leviable on goods. The Act itself does not define goods but define excisable goods as meaning goods specified in the First Schedule as being subject to a duty of excise and includes salt. On the meaning of the word goods, an interesting passage is quoted in the Words and Phrases, Permanent Edition, Vol. 18 from a judgment of a New York Court thus - The first exposition I have found of the word goods is in Bailey s large Dictionary of 1732, which defines it simply merchandise and by Johnson, who followed as the next lexicographer it is defined to be movable in a house; personal or immovable estates; wares; freight; merhandise. 16. Webster defines the word goods, thus - Goods noun, plural; (1) movables; household furniture (2) personal or movable estate, as horses, cattle, utensils, etc. (3) Wares; merchandise; commodities bought and sold by merchants an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uishable and so also the ruling by the Supreme Court in the case of Khandelwal Metal Engg. Works. The facts are quite different and they are clearly not applicable to the facts of the present case. 16. The facts as arising in the case of Modi Rubber (supra) and that of Asiatic Oxygen Ltd. [1989 (44) E.L.T. 718] and also that of Modi Vanaspati [1990 (47) E.L.T. 57] and also that of South India Viscose Ltd. [1992 (57) E.L.T. 142] are more akin to the goods in question. In all these rulings, the Tribunal and the Delhi High Court had taken a view that waste and scrap material are not manufactured item during the course of manufacture and hence, they are not dutiable. 17. In view of these rulings, we have to hold that the jute caddies is not a manufactured product and are, therefore, not goods for the purpose of excisability under Central Excises and Salt Act, 1944. The Hon ble Supreme Court has held in the case of Bhor Industries Ltd. v. Collector of Customs [1989 (40) E.L.T. 280] that an article is not liable to excise merely because of its specification in Tariff Schedule unless it is goods known to the market. The Supreme Court has held that marketability is an essential In ..... 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