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TMI Blog2013 (1) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... e used for sweetening the foods and beverages, which is the same as the use of sugar from which the same are made. These are just a form of sugar. Mishri is nothing but a form of sugar with bigger crystals and “Prasad” in this case is an amorphous form of sugar. Just because by subjecting a material to some process, a product with a new name emerges, the process cannot be called manufacture - for manufacture to take place, the resulting product must have a new commercial identity and must have character and usages different from the character and usages of the material from which it has been made Therefore for making of ‘Prasad’ and ‘Mishri’ from sugar does not amount to manufacture and hence ‘Prasad’ and ‘Mishri’ can neither be charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since, the value of Biscuits, Prasad and Mishri cleared during 2000-2001 was Rs. 1,20,04,585/- on this basis, the Assistant Commissioner vide order-in-original dated 30-11-2004 confirmed the duty demand of Rs. 3,20,734/- against the appellant along with interest under Section 11AB, and imposed a penalty of Rs. 3,20,734/- on the appellant firm under Section 11AC and penalty of Rs. 10,000/- on Shri Narain Das under Rule 26 of the Central Excise Rules, 2002. 1.2 On appeal to CCE (Appeals), the Assistant Commissioner s order was set aside vide order-in-appeal dated 28-2-2005. 1.3 Against the above order of CCE (Appeals), this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Shri Sunil Kumar, the learned Departmental Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red without the aid of power), 1701.20 (Khandsari sugar), sub-heading 1701.31 (levy sugar) and sub-heading 1701.39 sugar means any form of sugar in which sucrose content, if expressed as a percentage of the material dried to constant weight at 105 C more than 90% and in view of this Chapter Note, the judgment of the Apex Court in the case of Sakarwala Brothers (supra) and of Hon ble Rajasthan High Court in the case of M/s. Heera Lal Murlidhar (supra) would be squarely applicable to this case; (d) Tribunal in case of DCM Shriram Industries v. CCE, Meerut reported in 1996 (84) E.L.T. 221 (T) and Atul Products v. CCE, Pune reported in 2007 (210) E.L.T. 681 (T) has held that Patasa, Mishri, Alchidana are classifiable under Heading 1701 as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that these products are sugar confectionery classifiable under Heading 1704.90 as against appellant s claim for classification under sub-heading 2108.90. The Assistant Commissioner upheld the classification under 1704.90. The CCE (Appeals), while rejecting the classification under 1704.90 and 2108.90, has held that goods, in question, are classifiable under 1701.10 as sugar manufactured without the aid of power for which the tariff rate itself is nil . It is this finding of CCE (Appeals), which has been challenged in the Revenue s appeal, wherein the classification of Prasad and Mishri has been claimed under 1704.90. 7. So far as the Revenue s claim for classification under sub-heading 1704.90 is concerned, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 978 (2) E.L.T. J336 (S.C.), Metlex (I) Pvt. Ltd. v. CCE, New Delhi reported in 2004 (165) E.L.T. 129 (S.C.), CCE v. Technoweld Industries reported in 2003 (155) E.L.T. 209 (S.C.) and Union of India v. J.G. Glass Industries Ltd. reported in 1998 (97) E.L.T. 5 (S.C.) for a process to be called manufacture it must result in emergence of a commercially new product with a distinct name, character or usages. The Apex Court in para 16 of its judgment in case of Union of India v. J.G. Glass Industries Ltd. (supra) has held thus :- 16. On an analysis of the aforesaid rulings, a two-fold test emerges for deciding whether the process is that of manufacture . First, whether by the said process a different commercial commodity comes into existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phous form of sugar. Just because by subjecting a material to some process, a product with a new name emerges, the process cannot be called manufacture - for manufacture to take place, the resulting product must have a new commercial identity and must have character and usages different from the character and usages of the material from which it has been made. 9. We, therefore, hold that making of Prasad and Mishri from sugar does not amount to manufacture and hence Prasad and Mishri can neither be charged to duty by classifying them under 1704.90 nor under any sub-heading of 1701. The Revenue s appeal is, therefore, without any merit. The same is dismissed. (Pronounced in the open Court on 25-6-2012) - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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