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TMI Blog1987 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... fter posing a question; is the process of printing and lacquering them incidental or ancillary to the completion of manufacture of such a tube? The Division Bench answered the same as follows: "The definition of 'manufacture' given in clause (f) clearly suggests that any process before it is regarded an incidental or ancillary to the completion of a manufactured product must have some relation to the manufacture of a finished product. However, unessential that process may be if it is incidental or ancillary to the completion of a manufactured product then that process falls within the compass of the expression "manufacture". Printing and lacquering cannot be said to be incidental or ancillary to the completion of manufacture of the product. They have no relation to the completion of manufacture of tubes because unprinted and unlacquered tubes are by themselves a marketable commodity requiring nothing else for completing their manufacture. Printing and lacquering are therefore, not even remotely connected with the completion of the manufacture of aluminium tubes. It is a process which is independent of the manufacture of aluminium tubes. It is applied for the purpose of enhancing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry." The corresponding Entry in the Government of India Act, 1935 was Entry No. 45 of List I, Schedule VII, which read as under: "Duties of excise on tobacco either goods manufactured or produced in India except.........." The said Act was enacted in exercise of the Legislative powers under the said Entry No. 45 of List I of Schedule VII to the Government of India Act, 1935. The corresponding entry in the Constitution of India, as/aforesaid, is Entry No. 84 of List I of Schedule VII to the Constitution of India. Section 3 of the said Act is the charging section and lays down that there shall be levied and collected in such manner as may be prescribed duties of excise on excisable goods which are produced or manufactured in India. 5. Prior to the amendment, Tariff Items 27(e) and (f) mentioned only "extruded shapes and sections including extruded pipes and tubes and containers made of aluminium." Therefore, the question is whether by including the process of lacquering and printing in the inclusive definition of "manufacture" and also in Tariff Item 27(f), how doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 (20) E.LT. 179 (S.C.) = A.I.R. 1986 Supreme Court Page 662, the Supreme Court was considering whether cotton fabrics subjected to the process Of bleaching, mercerising, dyeing, printing, water-proofing, etc, would bring into existence different and distinct goods, commercially known as such, to attract levy of duty under Section 4 of the Central Excises and Salt Act, 1944. The Court expressly held that such a new substance had been brought into being inasmuch as printed or dyed cloth was a commercially different article from raw cloth, and it is on this basis the challenge by the petitioners was negatived. The Supreme Court, here, was considering, certain amendments to the said Act, all in relation to cotton fabrics but including various processes such as bleaching, mercerising, dyeing, printing, shrink-proofing, etc, in the concerned Tariff items of the First Schedule. The challenge was the same as in the case before me. But because of its finding that the processes brought into existence a new substance and as such amounted to "manufacture" of a commercially new product, the amendment was upheld and it was held to be within the Legislative competency of the Parliament. 8. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative competency to make such a law at all and, therefore, that must necessarily be held to be void. 11. Mr. Shah then submitted that if the item cannot fall within the scope of Entry No. 84 of List I of Schedule VII to the Constitution, it can fall under the Residuary Entry, being Entry No. 97 of List I of Schedule VII to the Constitution. In that context, Mr. Shah drew my attention to para 46 of the Judgment in the case of Empire Industries Ltd. 1985 (20) E.L.T. 179 (SC) = A.I.R. 1986 S.C. Page 662. 12. I have read the said passage. In the said passage a certain contention was advanced on behalf of the petitioners has been dealt with. The argument was to the effect that since the item would not fall within the scope of Entry No. 84 of List I of Schedule VII to the Constitution, it would fall within the scope of Entry No. 97 of List I of Schedule VII to the Constitution. It was then submitted that there was no charging section for such an activity and as such the charge must fall, and there cannot be any levy. This argument was considered to be based on misconception and negatived. There is no finding by the Supreme Court that in any event this item would fall under Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e beginning of the said Chapter 83 of the said Central Excise Tariff Act states as under:- "2. In relation to sub-heading No. 8312.11, the process of lacquering or printing or both of plain containers shall amount to manufacture". Therefore, the petitioners by an amendment incorporated these provisions in the petition and since they are in no way different from the previous ones, they have also been challenged on the same ground as in the petition. 16. It can be seen that the said new Tariff Item 8312.11 is thus virtually identical to the previous Tariff Item 27(f) as amended by the Finance (No. 2) Act, 1980. Therefore, for the same reasons as given above, this provision also will have to be struck down. 17. It was sought to be contended on behalf of the respondents that under this new Act viz. The Central Excise Tariff Act, 1985 (5 of 1986), the definition of "manufacture" has been recast as to read as follows :- "(f) "manufacture" includes any process, - (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the Central Excise Tariff Act, 1985 a ..... 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