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TMI Blog1999 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... nut powder, the marking thereof, and also directing them to forbear from insisting upon any return of the transactions in respect of the same being filed by them; etc. Certain quantity of shikakai alongwith soapnut powder produced by the 2nd respondent was seized by the appellants on the ground that the same is liable to levy of excise duty and that duty has not been paid by the manufacturer. Therefore, the writ petition is filed. 3.During the seizure the representative of the 2nd respondent has given a statement, under compulsion. The issue raised in the writ petition is as to whether the soapnut powder/shikakai powder is liable to excise duty under the Customs Tariff for the year 1994-95. He has averred that soapnut powder is manufactured by crushing the shikakai nuts collected from the forest. Their contention is Shikakai and Soapnut powder are the same. The annexures produced by the respondents disclose that the Government has declared that Shikakai or soapnut powder do not come under the category of Item 15-D included in the Finance Act. It was contended by the Department that the soapnut powder/shikakai powder would come within the ambit of the items "Others" grouped as 330 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in bazars. In recent years, the powdered pods, sometimes perfurmed, are also marketed. Shikai is preferred to soap when taking an oil bath as it does not leave the skin dry. Soap nut, which has similar properties, is from sapindus species. The pods contain saponin (5%). It is said that they are said to be used in northern Bengal for poisoining fish. 9.The Webster-III New International Dictionary defines `soapnut' as : "Soap nut 1: the seed of a soapberry (Sapindus Saponania) used for making beads and buttons 2: the flat saponaceous pod of an East Indian woody vine (Acacia concinna); also: the plant itself." 10.This is meaning given by the Western dictionary to the word soapberry, but we have to find out how Sige is understood among the Indian masses. The meaning of the word sigekai as per Kannada-English dictionary by Rev. F. Kittel is climbing prickly shrub, the pods of which are used like soap for washing the hair etc., Acacia Concinna DC Note: The soapnut tree is often called sige, but not correctly; the soap nut tree is etc.). 11.It is to be noticed that the Botanical name of two species i.e., Shikai and soapnut are different, the nature of trees are different, natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts of Heading Nos. 33.03, 33.04, 33.05, conversion of powder into tablets, labelling or relabelling of containers intended for consumers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the products marketable to the consumer, shall be construed as `manufacture'." 17.It means that powder should be transformed into some other form as tablets and packed or repacked for the purpose of sale. It contemplates third product manufactured from natural or commercial ingredients. As long as these activities are not there it is not possible to consider that there is a manufacturing activity. In the case of the Shikakai powder the original shikakai (pods) are made into powder by putting labour and undergoing a process, powder is manufactured for the purpose of sale in the market. When powder is made into tablets and packed for the purpose of sale, it amounts to manufacture making pods into powder and packing them in pockets for the purpose of sale amounts to manufacture. 18.It is relevant to refer the case law on the subject. In 1977 (1) E.L.T. (J199) (S.C.) = AIR 1963 S.C. 791 (Union of India v. Delhi Cloth General Mills), the question aro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Section 2(f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the legislature itself as manufacture of circles." 21.In AIR 1973 SC 425 (Allenburry Engineers v. Ramakrishna Dalmia) the Supreme Court also considered the word manufacture and followed earlier decisions. 22.In 1980 (6) E.L.T. 343 (S.C.) = AIR 1980 SC 1277, considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess or some other process to make `shikakai' into powder and `shikakai powder' which is distinct from `shikakai' is produced. It is separate and distinct commodity. Therefore, it amounts to manufacture. 26.The learned Counsel for the respondents contended that if any doubt arises in the construction of provisions of taxing statutes the same must be resolved in favour of the assessee and relied on the judgment of the Supreme Court in 1998 (97) E.L.T. 16 (S.C.) = 1998 (1) SCC 297 and in 1997 (91) E.L.T. 529 (S.C.) = 1997 (10) SCC 335. 27.The learned Counsel for the respondents contended that same is exempted from tax as per entry-14. `Shikakai' powder being `soapnut' powder is also exempted from tax. We have already held that `shikakai' and `soapnut' both are different species and are separate commodities. So, exemption granted to `soapnut' will not apply to `shikakai' powder. 28.There is no doubt about the principles laid down by the Supreme Court. In the present case no doubt arises. Therefore, the question of construction of a statute where doubt arises has not arisen in this case, therefore, these judgments are not applicable to facts of the present case. 29.In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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