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TMI Blog2012 (10) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... dia & Ors., [1981 (4) TMI 96 - HIGH COURT OF DELHI] followed. Decision in Commissioner of Customs and Central Excise, Goa v. Phil Corporation Limited [2008 (2) TMI 3 - SUPREME COURT OF INDIA] distinguished. - 17748 (W) of 2010 - - - Dated:- 20-4-2011 - Indira Banerjee, J. REPRESENTED BY : S/Shri S. Ganesh, J.P. Khaitan, Sr. Advocates, S. Banerjee, S. Datta and Agnibesh Sengupta, for the Petitioner. S/Shri Tapas Kumar Hazra and Kaushik Kanti Maiti, for the Respondent. [Judgment]. The Judgment of the Court was as follows : This writ application has been filed, inter alia, challenging a circular being Circular No. 931/21/2010-CX., dated 15th July, 2010 issued by the Central Board of Excise and Customs, hereinafter the Board , directing that tea fortified with vitamins be classified under Chapter 21 of the Customs Tariff Act, 1975 under Tariff Item 2101.20. 2. The short question involved in this writ application is whether tea fortified with vitamins is liable to tariff under Chapter 21 of the Customs Tariff Act, 1975 or under Chapter 9 of the Customs Tariff Act, 1975. 3. The petitioner No. 1 produces tea of different types, which are sold under various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea or mate and preparations with a basis of these products or with a basis of coffee, tea or mate; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof. 2101 20 - Extracts, essences and concentrates, of tea or mate, and preparations with a basis of these extracts, essences or concentrates or with a basis of tea or mate: 2101 20 10 - Instant tea . 2101 20 20 - Quick brewing black tea . 2101 20 30 - Tea aroma .. 2101 20 90 - Other .. 8. The petitioners submit that by reason of the directions as contained in the impugned circular, tea fortified with vitamins would be subjected to excise duty at 10.3 per cent, even though tea, whether or not flavoured under Chapter 9, has been exempted from Central Excise Duty. 9. The preliminary objection taken by Mr. Hazra, appearing on behalf of the respondents, to the maintainability of the writ petition, on the ground of existence of an alternative remedy of appeal against an order of assessment cannot be sustained. In the instant case, a circular of the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the completion of a manufactured product. The word manufacture used as a verb is generally understood to mean as bringing into existence a new substance. It does not mean merely to produce some change in a substance. To quote from a passage in the Permanent Edition of Words and Phrases Vol. XXVI manufacture implies a change, but every change is not manufacture and yet 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 . Manufacture* may involve various processes. The aim of any manufacturing activity is to achieve an end product. Depending on the nature of manufacturing activity involved, processes may be several or one. The natural meaning of the word process is a mode of treatment of some material in order to produce a good result. Every process which is incidental or ancillary to the completion of manufactured product is included within the meaning of manufacture. The word process has not been defined in the Act. In its ordinary meaning process is a mode of treatment of certain material i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fortification of tea with vitamins, does not constitute manufacture. 17. It is a well-settled principle of interpretation that taxing statutes must strictly be construed as understood in popular or commercial parlance and not technically as held in M/s. Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, reported in (1981) 2 SCC 528 = 1981 (8) E.L.T. 325 (S.C.) and in Dunlop India Ltd. v. Union of India Ors., reported in (1976) 2 SCC 241 = 1983 (13) E.L.T. 1566 (S.C.) cited by Mr. Ganesh. 18. Tea fortified with vitamins, which is tea would necessarily fall within Chapter 9 which includes both green tea and black tea in different forms, even in the form of ball, bricks, tablets or in tea bags. There is no specific entry in Chapter 21 for tea fortified with vitamins. In case of ambiguity the interpretation which is in favour of the Assessee, has to be preferred. 19. The items which are included in Chapter 21 under Tariff Item 2101 involve a process of manufacture which brings about such changes that the product which is produced can no longer be classified as tea, extracts, essences and concentrates of tea, mate and preparations based on tea, instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. In Birla Corpn. Ltd. this Court observed as follows : 5. In the Instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary. Birla Corpn. Ltd. is being followed consistently. 9. Since the point involved in the present case is identical to the point involved in Hindustan Petroleum Corpn. Ltd. and the Department having accepted the principle laid down in Hindustan Petroleum Corpn. Ltd. the Department cannot be permitted to take a different sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, Goa v. Phil Corporation Limited, reported in (2008) 17 SCC 569 = 2008 (223) E.L.T. 9 (S.C.), cited by Mr. Hazra, the Supreme Court found that edible fruit and nuts were chargeable under Heading No. 8.01, sub-heading 0801.00 of Chapter 8. Note III of Chapter 20, however, provided In relation to products of this Chapter, labelling or relabelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture . It was in the context of the aforesaid note that Supreme Court held, upon reference to Harmonised System of Nomenclature that processed cashew nuts, peanuts, almonds, dried roasted and/or oil roasted, salted and seasoned and packed in different containers would be classifiable under Chapter 20. The Judgment has no application in the facts of the instant case. 31. In Nestle India Limited v. Commissioner of Central Excise, Chandigarh, reported in (2009) 12 SCC 294 = 2009 (235) E.L.T. 577 (S.C.), the impugned decision of the Tribunal in favour of the Excise Authorities was set aside and the matter remitted to the Tribunal for decision along the lines indicated ..... 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