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TMI Blog2001 (8) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions stipulated in the said notification that the impugned machine ought to be used in the production of a commodity has been fulfilled. The learned lower authority has held that the impugned machine was a cutting machine to cut the bran feed only to reduce its size and shape to a fine bran and such cutting process would not strictly constitute a process of manufacture, to be taken as a production of a commodity. It is the case of the appellant that their end-product as far as bran is concerned, is fine bran only which is marketed by the appellant as cattle feed. It is their case that coarse bran is not marketed by them and therefore, the cutting of coarse bran into fine bran should be taken as manufacturing process. The appellants have referred to in this regard my earlier order Nos. M.Cus. 2187/95 dated 21-12-95 and also M.Cus. 428/96 dated 1-3-96. In the above two orders under reference, it was mentioned that any process incidental or ancillary to the completion of the manufactured product can be taken as manufacturing process and any machinery ussd in undertaking any such for the manufacture of the commodity. It was further observed that it was not necessary to think that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bran for cattle feed and with the help of the impugned machine they will be able to recover 24% of the wheat as fine bran for cattle feed. In the above facts and circumstance of the case, I am not persuaded by the plea of the appellant that the impugned bran cutting machine is used in the production of a commodity which in any case was being produced by the appellant earlier also without the bran cutting machine on their own admission. That apart, I am also not inclined to subscribe to the contention of the appellant that the coarse bran was not marketable as cattle feed. As a matter of fact, coarse bran and fine bran constitutionally are one and the same except for the size of the bran. If fine bran can be used as cattle feed there is no reason why coarse bran cannot be so used, in my case conversion of coarse bran into fine bran, both being cattle feed/wheat feed does not bring into existence a new product with distinctive name, character or use. The previous orders of mine referred to by the appellant are distinguishable as already stated above. Machineries imported in those cases were to be used prior to the emergence of the final product while in the instant case the bran cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the term manufacture in terms of the reasoning adopted by the lower authorities themselves. Therefore, production of a commodity being in dispute the items being complete machinery by itself being not disputed, therefore the benefit of the notification cannot be denied. He relied on the ratio of the Judgment rendered in the case of CC, Bombay v. M/s. Duro Foam Industries Pvt. Ltd. as reported in 1986 (26) E.L.T. 341 (T) which while upholding the classification of foam cutting machine under the old tariff head 84.59(2) held that it is a machine designed for production of a commodity. The machine was only carrying on a process of cutting blocks, mattresses and foam cushions. Even, there the authorities had taken a view that it was merely carrying out the operation of cutting and it did not bring into existence goods and hence the benefit was denied. However, the Tribunal overruled the Department s contention and held that cutting of sheets brought into existence marketable items and therefore it was designed for production of a commodity and the benefit of the notification was extended. 3. Ld. Counsel further referred to the ratio of the judgment rendered in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot bringing into existence or producing a commodity, therefore the benefit was denied. 5. Ld. Counsel distinguished the judgment on the plea that all the machines were not joined together and were independent and it did not bring out existence of a separate commodity, while in his case the machine was complete in all aspects and brings into existence a whole product. 6. On a careful consideration of the submissions made by both the Ld. Counsel and DR and on perusal of records and the citations relied by the Ld. Counsel, we are of the considered opinion that appellants have succeeded in establishing their case for grant of benefit of notification wherein Sl. No. 17 refers to all goods other than the falling under sub-heading 8479.89, machinery production of commodity . The chapter sub-heading under the table of the notification refers to 84.79. The classification adopted in this case is under sub-heading 8479.89 and appellant claim for the benefit of Sl. No. 17 of the Notification No. 49/97 has merely been denied. They are engaged in production of wheat flour products like maida, sooji, atta and bran from wheat. The wheat product taken from the wheat is coarse fine bran. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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