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TMI Blog2024 (5) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... fication. The impugned order is upheld - Revenue s appeal is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of such an investigation, show cause notice was issued to the respondent herewith directing to show cause as to why the process of the resultant product Sulphur-90% WG with the brand name of "CosavetFertis" from sulphur may not be held amounting to manufacture under section 2(f) of Central Excise Act, 1944. The adjudicating authority, after considering the submissions made before him and also after granting personal hearing to the respondent, dropped the proceedings initiated by said show cause notice. Aggrieved by such an order, Revenue is in appeal before us. 3. Shri. Prabhat K Rameshwaram Learned Additional (Authorised Representative) reiterates the grounds of appeal. It is his submission that the product viz. Sulphur-90WG ("Ferris-WG") manufactured and cleared by the assessee, which emerge from a series of processes is a distinct commodity (fertilizer) having distinct name and use and is different from the input raw sulpher. The said product is marketed under the brand name and is being manufactured by a long drawn process. As per the definition "manufacture" takes place when a new commercial commodity with a distinct name, character or use emerges from a process or se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in subsequent cases. He placed reliance on the following judgments. (i) Birla Corporation Ltd. Vs. CCE- 2005 (186) ELT 266(SC) (ii) CCE Vs. Jain Vanguard Polybuttene Ltd. - 2010 (256) ELT 523 (Bom) (iii) CCE Vs. Aurobindo Pharma Ltd. -2010(259)ELT 673 (AP) 4.2 He further argues that major demands as raised in show cause notice dated 07.10.2015 for the period 2013-14 to 2014-15 (upto September 2014) is time barred as issued beyond normal period as prescribed. 5. Heard both the sides and perused the records. We find that whether the disputed goods liable to duty or not already decided by the Tribunal cited supra in the own case of the respondent. The nature and composition of the materials (including Sulphur 99%) procured and used by the Respondent are the same, the process undertaken and the chemicals added to Sulphur 99% are the same; the nature as well as composition and use of the products obtained by the Respondent i.e Casvet Fertis- WG are the same, the structures of Chapter 25,38 and 31 of tariff are also the same, and most importantly there is no change in definition of „manufacture‟ and „excisable goods‟ under the Central Excise Act, nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58) E.L.T. 130 (S.C.); Birla Corporation Ltd. v. Commissioner of Central Excise - 2005 (186) E.L.T. 266 (S.C.); JayaswalsNeco Ltd. v. Commissioner of Central Excise, Nagpur - 2006 (195) E.L.T. 142 (S.C.) etc.,)" 7. It was held in Birla Corporation Ltd. (Supra) as under : "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. [2001 (130) E.L.T 193] 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." 5.2 Similarly, in another decision of the Apex Court reported in 2007 (13) SCC 807 = 2006 (195) E.L.T. 142 (S.C.) (JayaswalsNeco Limited v. Commissioner of Central Excise, Nagpur), it has been observed as follows :- "7. This Court in Birla Corpn. Ltd. v. CCE [2005 (6) SCC 95] relying upon an earlier decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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