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TMI Blog1990 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... was in force for the period 1-3-1981 to 1-3-1982). They have sought to classify the lacquered and metallised polyester film under the said tariff item in force at the relevant time and have sought to levy excise duty on it. These orders, which are at Exhibits O, P-1, P-2 and Q of the petition, are being challenged in the present writ petition. They cover the period from 16-3-1982 to 30-4-1982 and 12-7-1982 to October 1982, the date of the filing of the petition. 3. Prior to March 1981 Tariff Item 15A of the Central Excise Tariff Act was as follows: "15 A -ARTIFICIAL OR SYNTHETIC RESINS AND PLASTIC MATERIALS AND CELLULOSE ESTERS AND ETHERS, AND ARTICLES THEREOF:- (1) The following artificial or synthetic resins and plastic materials, and cellulose esters and ethers, in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders, namely :- (i) Condensation, polycondensation and polyaddition products, whether or not modified or polymerised and whether or not linear such as Phenoplasts, Aminoplasts Alkyds, Polyamides, Super Polyamides, Polyesters, Polyallyl esters, Polycarbonates Polyethers, Polyethylene imines, Polyurethanes, Epox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem 15BB, but the same would not be liable to duty again provided that it is manufactured from duty paid bare polyester film. 6. From 1-3-1982 Tariff Item 15BB has been omitted and Tariff Item 15A has been amended. The amended Tariff Item 15A is as follows: "15A - ARTIFICIAL OR SYNTHETIC RESINS AND PLASTIC MATERIALS AND OTHER MATERIALS AND ARTICLES SPECIFIED BELOW: (1) Condensation, Polycondensation and Polyaddition products, whether or not modified or polymerised ......... (2) Articles of materials described in sub-item (1), the following, namely: Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not; lay flat tubings not containing any textile materials." 7. Under tariff advice dated 15-7-1982 issued by the Central Board of Excise and Customs it has been stated that the process of metallising/lacquering and laminating duty paid polyester film amounts to manufacture and is accordingly covered under Item 15A(2). Thereafter by an order dated 3-9-1982 the Assistant Collector of Central Excise, Nasik negatived the contention of the petitioners that metallised/lacquered polyester films were not excisable and confirmed the classification of metall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use. The Court also said that the definition of the word 'manufacture' in Sec. 2(f) does not equate 'processing' with 'manufacture'. Therefore, mere processing of goods is not liable to excise duty. We do not propose to go into the question whether processing by itself will amount to 'manufacture' or not. We will assume, as contended by the respondents, that in a given case processing may amount to manufacture provided a different commercial commodity having a distinctive name, character or use emerges as a result of this processing. The basic test which is to be applied is whether as a result of the activities carried on by the petitioners at their Nasik factory, a new commercial commodity having a distinct name, character or use emerges. 11. In the case of South Bihar Sugar Mills Ltd. v. Union of India reported in 1978 (2) E.L.T. (J 336) the Supreme Court was required to consider whether kiln gas is carbon dioxide. In the course of judgment it also considered the meaning of the term 'manufacture' under Sec. 2(f) of the Central Excises and Salt Act, 1944. The Supreme Court reiterated the test laid down by it in the case of Union of India v. Delhi Cloth and General Mills Co. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l commodity having a distinct character, use and name. The decision of the Bombay High Court in New Shakti Dye Works Pvt. Ltd. was upheld by the Supreme Court in this case. Mr. Desai has also relied on the case of Ujagar Prints v. Union of India reported in 1988 (38) E.L.T. 535 (SC) for the same purpose. We need not multiply authorities on this aspect. 16. Undoubtedly there are cases where the court has held that processing may amount to 'manufacture'. In the Karnatak case - Deepak Extrusion v. J. T. Chopra, Assistant Collector of Central Excise, Bangalore reported in 1988 (34) E.L.T. 432 (Kar.) the court was required to consider whether lacquering and printing aluminium tubes amounts to manufacture under Sec. 2(f) of the Central Excises and Salt Act, 1944. The Court took into account the fact that under the amended Sec. 2(f) in terms, 'manufacture' in relation to aluminium includes lacquering and printing or both of plain containers. In view of this express provision in Sec. 2(f) the Court held that lacquering and printing aluminium tubes would amount to 'manufacture'. 17. In the case of Laminated Pickings (P) Ltd. v. Collector of C. Ex. reported in 1990 (49) E.L.T. 326 (S.C.) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of the tariff advice of July 1982. Since the respondents have to perform a quasi-judicial function in deciding to classify goods and levy excise duty on such goods, their judgment cannot be fettered by any tariff advice. (See in this connection Orient Paper Mills v. Union of India reported in AIR 1969 S.C. 48). We, however, do not find anything in the impugned orders which would indicate that the decision taken by the respondents is based on the tariff advice in question. Hence we need not examine this argument any further. 20. Mr. Desai also urged that the impugned orders are appealable orders and hence we should not entertain the present writ petition. Looking to the fact that the writ petition has been admitted by this Court as far back as in October 1982 and interim orders have also been passed in this writ petition as far back as in October, 1982, it would not be proper on our part, after a lapse of 8 years, to refuse to adjudicate on the petition on merit only on the ground that at the relevant time an alternative remedy was available to the petitioners. 21. In the premises, rule is made absolute in terms of prayers (a) and (b). This includes refund of excise duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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