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TMI Blog1995 (10) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... nts for the purpose of encapsulation and coverting into tablets and then puttng them into strips for sale amounts to manufacture and that they are goods. In this regard, the ld. Collector has relied on the ruling of the Hon'ble Supreme Court rendered in the case of Collector of Central Excise v. East End Paper Industries Ltd. as reported in - 1989 (43) E.L.T. 201 (SC). 3. When the case came up for hearing, the ld. Counsel Shri V. Sridharan did not challenge the classification of the item under Tariff Heading 3402.90. However, he contended that no new goods had arisen from the enzyme powder after its conversion into tablets, therefore, the question of treating them as new goods does not arise for the purpose of classification. He submitted that these enzyme powder is imported by M/s. Bausch & Lomb India Ltd. and that they are sent to the appellants for job work for the purpose of making it into tablets and also to put the same into strips for the purpose of marketability. He submitted that the appellants were not converting the powder form into something new goods by any process of manufacture. It is his contention that there has been no change in the name, character or use to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined. However, in the form of powder obtained by crushing or breaking of larger lumps, these minerals find extensive use in ceramic industry and reractories and on this account after such conversion they become marketable. Therefore, the Tribunal held that such conversion amounts to manufacture. In this regard, the Tribunal relied on the ruling rendered in the case of Associated Soapstone Distributing Company Pvt. Ltd. v. Collector of Central Excise, as reported in - 1985 (22) E.L.T. 109, wherein the grinding of soap lumps into powder was held to be manufactured. The Tribunal also relied on the ruling rendered by the Hon'ble Madhya Pradesh High Court in the case of Kher Stone Crusher v. G.M. District Industries Centre as reported in 1992 (61) E.L.T. 586, wherein the process of conversion of stones into gittis, ballast and metal in crushers was held to be a process of manufacture. The Tribunal in the case of Ajanta Marble & Chemical Industries v. Collector of Central Excise as reported in - 1991 (53) E.L.T. 457 has held that crushing of limestones into powder amounts to manufacture. The Tribunal's ruling rendered in the case of Eastern Minerals relying on the said citations is tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which results into production of a product distinct in name, properties and use and known as distinct commodity in the market. 15. The Hon'ble Supreme Court has also held that a mere change of form does not amount to manufacture. This Tribunal had also occasion to hold in the case of M/s. Brook Bond India Ltd. [1994 (73) E.L.T. 151] that mere conversion of coffee powder into coffee tablets does not amount to manufacture. 16. Therefore, in my opinion the process described by the appellant does not amount to manufacture as no new commodity emerges as a result thereof. 17. The matter can also be looked at from a different angle. 18. For the purpose of Central Excise, manufacture could only mean manufacture in terms of Section 2(f) read with the Section Notes and Chapter Notes. The classification proposed by the Department (and not opposed by the appellant if the item was considered as an excisable product) is 3402.90 but Chapter 34 does not declare conversion of powder into tablets as a process of manufacture or deemed process of manufacture. 19. It has already been held by the Tribunal in the case of SAIL [1991 (54) E.L.T. 414] that the Tariff includes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B & L into tablets. Enzymes had been imported in powder form and cleared after paying customs duty and countervailing duty at the appropriate rate. The appellants merely compact it into tablets. The B & L had also printed aluminium foils which they had sent to the appellant for packing the powder. They merely convert the enzymes in powder form into tablets by direct compaction and put them into strips and clear them as enzyme tablets. They never added any material nor removed or reacted or otherwise mixed any other material with the material such as was imported. The operation consisted merely in compacting the imported material in powder form into tablets. There tablets are used for cleaning the contact lenses by removing proteineous deposits which occur on the contact lenses because of use. These tablets are merely dissolved in water, the same function can be performed also by the powder and as such there is no change in composition or usage. Even after compacting the tablets, the material remains the same. The change in form from powder to tablets does not lead to change either of composition, usage or name of the product such as could have been held to have resulted in manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate that in absence of such mention in other chapters such processes would not amount to manufacture. The imported product was an enzyme powder in bulk and this has been converted into tablets. The bulk powder as imported is not marketable. He cited the case order reported in 1983 (69) E.L.T. 589 which held that manufacture of amonium nitrates melt into amonium nitrate was manufacture as there was change in form and cases reported in 1988 (37) E.L.T. 369, 1992 (59) E.L.T. 482, 1993 (67) E.L.T. 907 and 1994 (70) E.L.T. 301 in support of his contention that a change in form can amount to manufacture. 26. In the rejoinder, the Ld. Advocate for the appellant submitted that the cases cited by the Ld. D.R. were not relevant. In regard to case of amonium nitrate melt as reported in 1983 (69) E.L.T. 589 the significant part to note was that melt is a fertilizer but if it is used as flake it becomes explosive. 27. I have given careful consideration to the submissions made by both sides. I first take up the plea very forcefully canvassed by the Ld. Advocate relating to maxim which mean that mention of one thing in a statute implies exclusion of another. "Words and Phrases" per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressio unius est exclusio alterius is applicable. By this rule, mention of one or more things of a particular class may be regarded as silently excluding all other members of the class; expressum facit cessare tacitum. 28.3 It can, therefore, be seen that this maxim is not of universal application and may have application in some case and have no application at all in other cases. Chapter Note 5 of Chapter 30 of Central Excise Tariff mentions, "in relation to products of Heading No. 30.03, conversion of powder into tablets or capsules, labeling or relabeling intended for consumers and repacking from bulk pack to retail marketable to consumers shall amount to manufacture". It is very clear, therefore, that what this Note says applies only to products of Heading No. 30.03, where operations such as are listed there, are by virtue of a legal fiction made to amount to manufacture. Merely because there is no similar provision in Chapter 34 under which the goods are sought to be classified is not reason to hold that in case of products of that Chapter such operation would not amount to manufacture. Whether or not a particular process amounts to manufacture is a finding of fact whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manufacture. 30.2 In case of Union of India v. Delhi Cloth & General Mills - 1977 (1) E.L.T. (J 199) (SC) = 1990 (27) E.C.R. 151 = E.C.R. (C) 216 (SC) the Hon'ble Apex Court held : "We are unable to agree with the Ld. Counsel that by inserting the definition of the word `manufacture' in Section 2(f), the Legislature intended to equate `processing' to `manufacture' and intended to make mere `processing' as distinct from the `manufacture' in the same sense of bringing into existence a new substance known to the market, liable to duty." 30.3 The Apex Court in making a distinction between process and manufacture relied upon a passage in permanent Edition of Words and Phrases, Volume 26 of an American Judgment. The passage ran `manufacture' implies a change, but every change is not manufacture and yet every change of an article is result of treatment, labour and manipulation............... a new and different article must emerge having a distinct name, character or use." 30.4 In case of Mc. Nicol & another v. Pinch (1906) 2 K.B. 352 discussed in case of Empire Industries Ltd. and Others v. Union of India - ECR (C) 797 (SC), it was held by majority that subjecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed article" [See Pio Food Packers, ECR 575(SC)]. 31.1 It is in the light of these Principles of Law that one has to arrive at a finding as to whether processes in the present case amount to manufacture. 31.2 M/s. B & L had imported enzyme blends in powder form. The appellants merely compact this powder into tablets. The method employed is direct compaction. After this these tablets are put into strips as packing and cleared as enzyme tablets. The appellants have not added any material to the powder nor removed anything from it. The material has not otherwise reacted or mixed with any other material. The tablets are used for cleaning the contact lenses since during the use proteineous deposits occur on the contact lenses. These tablets are simply dissolved in water with which contact lenses are cleaned. The same function could be carried out by the powder also. It is also not that the powder as imported was subjected to any further manufacturing process in the same manner an industrial raw material is so subjected. In this view of the matter it cannot be said that it was sold, on importation, as a raw material and that it was marketable only as a raw material. Test of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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