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TMI Blog2000 (12) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... to know that an American Company had invented a Resin called "ELVAMIDE" which makes Nylon threads get bonded and secured. Therefore, the petitioner-company requested for the permission of the Government of India to import ELVAMIDE. Accordingly permission was granted. The ELVAMIDE are in the form of "Granules". These granules are dissolved in Methylated Spirit and water by heat process, in the prepared ELVAMIDE solution, the Nylon threads are dipped and dried in heating chambers, such treated Nylon Sewing Threads kept the strands together. in(b) January, 1993, the Assistant Collector of Central Excise, Tirunelveli, the second respondent herein visited the petitioner-company and enquired about the preparation of ELVAMIDE solutions. The Officials of the petitioner-company explained the physical and chemical properties of the ELVAMIDE granules. On 26-2-1993, the Collector of Central Excise, Madurai, the first respondent herein issued a show cause notice to the petitioner company holding that the ELVAMIDE solution is a prepared Adhesive solution classifiable under the Heading 3506. Therefore, the petitioner should pay excise duty. On 12-3-1993 the petitioner company sent a letter to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and opportunity to defend their case by submitting their objection in the adjudication proceedings. In the event of their not able to convince the adjudicating authority the petitioner has a statutory remedy of filing an appeal before the appellate authority. Moreover, the question involved in this petition is a question of fact and not a question of law. It is for the petitioner to product evidence to adjudicating authority and prove that no new product has been emerged after the process of mixing. The petitioner has engaged in the unauthorised manufacture and clearance of binding solution, a prepared adhesive, falling under sub-heading 3506 of Central Excise Tariff Act, 1985. The bonding solution made out of Elvamide granules, Methylated Spirit and water, has got a specific character and specific end-use as adhesive which did not exist before. Therefore, the process of mixing, heating and cooling which brings into existence a new product called Bonding Solution, can rightly be called as manufacture. The bonding solution is obtained with a distinct property and use after the process of manufacture. The resultant product is clearly recognisable as a different product, a prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proceedings before the authority concerned after a long number of years. 12.This writ has been filed in 1993. It is pending for nearly seven years. Therefore, taking support of the view expressed by this Court in [1990 (48) E.L.T. 321] (supra) relying upon the decision of the Supreme Court, I am constrained to hold that this Court would go into merits, especially when it is pointed out by the petitioner that the respondents had no jurisdiction to pass the impugned order with a proposal to impose duty on the product which is not excisable. 13.As held by this Court, the existence of an alternative remedy or availability of the opportunity to defend the case before the authority concerned is not a ground for refusing the relief of Writ of Certiorari, where it appears on the face of the proceedings or on undisputed facts that the authority had acted without jurisdiction or in excess of jurisdiction. Similarly, the pendency of the proceedings for several years should also be taken into consideration at the time of final disposal of the case, as to whether the petitioner should be relegated to the statutory alternative remedy. 14.In that view of the matter, I am to hold that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied. The expression "produced or manufactured" has further been explained by this Court to mean that the goods so produced must satisfy the test of marketability. ……... The duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, moveable, saleable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for levying excise duty linking if with production or manufacture is that the goods so produced must be a distinct commodity known as such in common parlance or to the commercial community for purposes of buying an selling. Since the solution that was produced could not be used as such without any further processing or application of heat or pressure, it could not be considered as goods on which any excise duty could be levied.' 20.In Bhor Industries Ltd. v. Collector of Central Excise [1989 (40) E.L.T. 280], the Supreme Court would observe as follows :- 'Section 3 of the Act enjoins that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or "manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such and no process altering the characteristics of product takes place. Elvamide solution cannot he held as an excisable product. 26.The change of primary form, solid to liquid or liquid to solid, can never be reckoned as "manufacture" unless there is a transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name. 27.In the present case, it is an admitted fact that the Elvamide granules is made into solution by mixing with Methylated Spirit and water. Under those circumstances, it cannot be contended that a new commodity is formed due to the above process. 28.There is also no dispute that the above solution has limited shelf life and no product known as Elvamide solution is available in the market ready for use. 29.In the impugned proceedings dated 26-2-1993, it is clearly admitted that Elvamide is dissolved in the mixture of water and Isopropanol by heating in a vessel and then the said solution is allowed to cool and bonding solution is ready for use. It is also admitted that from the test report, shelf life of bonding solution is approximately two months. 30.The above factors are mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et is essential. 33.The Act charges duty on manufacture of goods. The word "manufacture" implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. 34.The duty is attracted not by captive consumption of any article but it must be goods within the meaning of the Act which, apart from having a distinctive name and known as such, must be marketable or capable of being marketed. 35.An article does not become goods in common parlance unless by production or manufacture something new and different is brought out which can be bought and sold. Although the duty of excise is on manufacture or production of the goods, but the entire concept of bringing out new commodity etc. is linked with marketability. Therefore, any goods to attract excise duty must satisfy the test of marketability. 36.The duty is attracted not by captive consumption of any article but it must be a goods within the meaning of the Act which apart from having a distinctive name and known as such must be marketable or capable of being marketed. 37.These requirements have not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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