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TMI Blog2014 (3) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals are allowed - Following decision of Commissioner of Central Excise Versus Osnar Chemical (P) Ltd. [2012 (1) TMI 27 - Supreme Court of India] - Decided in favour of assessee. - E/89364/2013-Mum. & E/89365/2013-Mum - Final Order Nos. A/110-111/2014-WZB/C-II(EB) - Dated:- 31-1-2014 - S S Kang And P K Jain, JJ. For the Appellants : Shri J H Motwani with Ms Nehal Parekh, Advs. For the Respondent : Shri Shobha Ram, Commissioner (AR) PER : P K Jain The brief facts of the case are that the appellant viz. M/s. Associate Lumbers Pvt. Ltd. are importing plywood. At the time of import these are being classified under heading 44123110 and being cleared on payment of Customs duty including CVD. After import of the said goods these are subjected to a process of manually dipping them individually in a tank containing a solution of chemicals namely Sodium Bicarbonate, Boric Powder and Copper Sulphate mixed in water. The solution is heated to boiling point thereafter imported plywood is dipped, removed and kept for drying. The original plywood get coated with the chemicals. Thereafter appellants put labels, stickers on the plywood indicating it as Marine Plywood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, Patna 2013 (295) ELT 106 (Tri-Kolkata) (vi) Tega India Ltd. Vs. Commissioner of Central Excise, Calcutta II 2004 (164) ELT 390 (SC) 5. Learned A.R. on the other hand argued that they have imported decorative plywood and after the process it becomes marine plywood. Two are commercially different products and usage are also different. Learned A.R. took us through the findings of the Commissioner in the order-in-original to support the contention that the process amounts to manufacture. Since a new commodity with different name, character and use has come into existence, process undertaken amounts to manufacture and hence new product is chargeable to duty. In support of this contention he quoted the following judgments (i) Commr. of Income Tax-V, New Delhi Vs. Oracle Software India Ltd. 2010 (250) E.L.T. 161 (S.C.) (ii) Empire Industries Ltd. Vs. Union of India 1985 (20) E.L.T. 179 (S.C.) (iii) Relax Safety Industries Vs. Commissioner of Cus. ((Import), Mumbai 2007 (212) E.L.T. 289 (S.C.) 6. We have considered the rival submission. The short point to be decided is whether the process undertaken by the appellant amounts to manufacture. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not strictly amount to manufacture provided those processes are specified in the Section or Chapter notes of the Tariff Schedule as amounting to manufacture. It is clear that the Legislature realised that it was not possible to put in an exhaustive list of various processes but that some methodology was required for declaring that a particular process amounted to manufacture. The language of the amended Section 2(f) indicates that what is required is not just specification of the goods but a specification of the process and a declaration that the same amounts to manufacture. Of course, the specification must be in relation to any goods. XXX XXX XXX XXX XXX XXX XXX XXX 24. In this case, neither in the Section Note nor in the Chapter Note nor in the Tariff Item do we find any indication that the process indicated is to amount to manufacture. To start with the product was edible vegetable oil. Even after the refining, it remains edible vegetable oil. As actual manufacture has not taken place, the deeming provision cannot, be brought into play in the absence of it being specifically stated that the process amounts to manufacture. 17. Then ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, the learned Judges of the High Court laid an undue emphasis on the addition by way of the absorption of the hydrogen atoms in the process of hardening and on the consequent inter-molecular changes in the oil. The addition of the hydrogen atoms was effected in order to saturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter- molecular changes necessarily affect the identity of a substance as ordinarily understood............ The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil. (Emphasis supplied by us) 20. In Delhi Cloth General Mills Co. Ltd. (supra), yet another Constitution Bench, exploring the concept of manufacture echoed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. 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 recognized as a new and distinct article that a manufacture can be said to take place. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity. (Emphasis supplied by us) 23. Having considered the matter on the touchstone of the aforesaid legal position, we are of the view that the process of mixing polymers and additives with bitumen does not amount to manufacture. Both the lower authorities have found as a fact that the said process merely resulted in the improvement of quality of bitumen. Bitumen remained bitumen. There w ..... 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