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TMI Blog2000 (3) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... moothened as per the specifications. The Commissioner, under the impugned order, held the impugned products as excisable goods as stock-rails and tongue rails have a connotation distinct from ordinary rails; that these are understood in Commercial parlance as distinct commodities; that stock-rails/tongue rails are meant to perform the specification of providing smooth movement of trains at switch expansion joints which ordinary rails cannot perform; that check rails mentioned specifically in HSN Explanatory Notes, are also obtained from rough rails and accordingly the impugned goods are also excisable; that just become two products are classification under the same heading or sub-heading, it does not automatically mean that they are not distinct or that the process of conversion from one form to the other does not amount to manufacture. He relied upon the decision in the case of Laminated Packagings (P) Ltd v. C.C.E., 1990 (49) E.L.T. 326 (S.C.). 3. Shri M. Chandrasekharan, learned Senior Advocate, submitted that tongue rail is a tapered movable rail, tapered at one end, a pair of which with necessary connections and fittings form a switch; that stock rail is a running rail a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by time limit; that show-cause notice was issued on 4-3-1997 for demanding Central Excise Duty for the period from 1989-90 to 1994-95; that period upto January, 1992 is even beyond the period of 5 years from one date of issue of the notice and as such demand of duty amounting to Rs. 8.38 lakh is void ab initio as there is no provision in the Central Excise Act for raising a demand of duty beyond the period of five years; that the present show cause notice has been issued in supersession of the earlier three show cause notices and the period of limitation has to be computed with regard to the present notice dated 4-3-1997. He relied on the decision in National Organic Chemical Industries v. C.C.E., 1987(30) E.L.T. 463 (T), which has been upheld by the Supreme Court as reported in 1996 (84) E.L.T. (A167). He emphasised that the issue of exigibility of tongue rail and stock rail was raised for the first time in notice dated 4-3-1997; that though the said notice has been issued as per remand order, the provisions of section 11A of the Central Excise Act cannot be side-lined and the limitation has to be considered from the date of issue of notice; that the decision in the case of Sunda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uddas case, relying upon Supreme Court's decision in Empire Industries Ltd. v. Union of India, 1985 (20) E.L.T. 179 held that process of conversion of iron and steel products into columns, purlins, bracings, rafters amounted to a process of manufacture since the resultant goods had a distinct name, character and use different from the raw materials. The learned SDR also relied upon the decision in the case of CCE, New Delhi v. Shivaji Industries, 1999 (113) E.L.T. 500 (T) = 1999 (34) RLT 612 (CEGAT) in which it was held that process of making steel tubes into tubular steel poles amounts to manufacture, following the decision in Indian Metals & Ferro Alloys Ltd. v. CCE, 1985 (21) E.L.T. 548 (T). Reliance was also placed on the following decisions :- (i) Advance Radio Masts Ltd. v. CCE, Hyderabad - 1997 (91) E.L.T. 683. (ii) Brakes Indis Ltd. v. Superintendent, Central Excise - 1998 (101) E.L.T. 241 (S.C.). Drilling, trimming and chamfering of brake lining blanks was held to be amounting to manufacture as without such process brake lining cannot be used by the automobile manufacture. (iii) Foils India Laminates Pvt Ltd. v. CCE, Jaipur - 1999 (111) E.L.T. 728 (Tribunal) House f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Cloth and General Mills, 1977 (1) E.L.T. (J 199) (S.C.) held that 'the word "manufacutre" used as a verb is generally understood to mean as "bringing into existence a new substance", and does not mean merely "to produce some change in a substance however minor in consequence the change may be." The Supreme Court referred to the following passage quoted in Permanent Edition of Words & Phrases from an American judgment - "Manufacture implies a change, but every change of an article is the result of treatment labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use." In Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers - 1980 (6) E.L.T. 343 (S.C.) the Court further observed "with each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised a new and distinct article that a manufacture can be said to take place. Where there is no essential difference in identity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is always as steel angles." The ratio of the decision relied upon by the learned S.D.R., in our opinion, is not applicable to the facts in the present matter. In Advanced Radio Masts case, supra, the process of cutting of cables and fitting them with terminal ends was held to be a manufacturing process in view of Note 6 to Section XVI. The Tribunal held therein that the section Note 6 "clearly stipulates that conversion of an item to give it the status of finished product ready for use from its incomplete or unfinished form even though it may have the character of complete or finished article shall amount to manufacture." No such Note is available in Section XV or Chapter 73 of the Tariff. In Black Diamond Beverages case, supra, washing of aerated water bottles with caustic soda lye flakes was considered a process incidental to the completion of manufactured product in marketable form for the purpose of Modvat Credit under Rule 57A where the issue to be decided is whether the inputs are used in or in relation to the manufacture of final products. In Gramophone Company's case. supra, the Supreme Court held the process of pre-recording of audio cassettes amounting to manufacture as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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