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TMI Blog2003 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... r Bhiwani unit. If they had filed the process of manufacture for one of their unit, it cannot be alleged that in not filing the process of manufacture in Viramgam unit they had suppressed the fact with an intent to evade payment of duty. The learned Advocate has relied upon the judgment in Cadila Laboratories Pvt. Ltd. v. CCE, [ 2003 (2) TMI 65 - SUPREME COURT] wherein the extended period was held to be not invocable by the Supreme Court as no duty was sought to be levied on the same products manufactured by the sister concern and therefore it could not be said that the belief of the appellants was not bona fide. The appeal is thus allowed. - S/Shri V.K. Agrawal, Member (T) and P.G. Chacko, Member (J) [Order per : V.K. Agrawal, Member (T)]. - In this appeal, filed by M/s. Hindustan Gum and Chemicals Ltd., the issue involved is whether TPT-12 (treated Tamarind Kernel Powder) is classifiable under Heading 11.01 of the Schedule to the Central Excise Tariff Act as product of milling industry or under Heading 13.01 as a gum as confirmed by the Commissioner (Appeals) in the impugned Order. 2.Shri A.R. Madhav Rao, learned Advocate, submitted that the Appellants, in their two factories a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esins rendered water soluble by treatment with water under pressure (Heading 13.02), gums rendered soluble by treatment with sulphuric acid (Heading 35.06), and resins which have been heat-treated to make them soluble in drying oils (Heading 38.06)". 3.3.He stated that it is thus clear that there being no corresponding entry to "Mucilages and thickeners, whether or not modified, derived from vegetable products", the TKP-12 cannot be classified under Heading 13.01 of Central Excise Tariff Act and it is appropriately classifiable under Heading 11.01 only; that Chapter 13 of the Central Excise Tariff has not been aligned with HSN so as to cover derived vegetable products like mucilages and thickeners, whether or not modified. 4.The learned Advocate also contended that the process of treating the TKP does not amount to manufacture in view of the fact that the TKP continues to be TKP and sold as such in the market; that the TKP is soluble in hot water and usable; that by treating the TKP with chemicals, the same is made soluble in cold water; that moreover, the TKP is sold in the market as TKP only irrespective of whether it is hot water soluble or cold water soluble; that except for ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated TKP"; that a new product having a new name, character and use emerges as a result of process undertaken by the appellants; that it is apparent from the statements of Shri Sukhvir Singh, Production Manager, and Shri Kamal Madan, General Manager, that the purpose of Chemical reaction is to impart viscosity to TKP in cold water as TKP has practically no viscosity in cold water and that after treatment it is known as printing gum; that Shri Rajkumar, Manager of M/s. Maruti Textiles Pvt. Ltd. engaged in dyeing and printing of fabrics, has stated in his statement that TPT 12, Guargum powder, TPS 16A, etc., are used by them; that the main function of TPT -12 or guargum powder is to strengthen binding the colour with fabrics and pasting of fabrics on rubber blanks; that TPT 12 or guargum powder are purchased by them from the appellants. The learned Senior Departmental Representative, further, submitted that it has also been admitted by Shri Kamal Madan that the average price of the impugned product is Rs. 44/- per kg whereas the price of TKP purchased by them is Rs. 16.50 per Kg. only; that this is enough to show that a new product has emerged as a result of processes undertaken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.01 Lac; gums, resins and other vegetable saps and extras." 9.The facts which are not in disputed are that the tamarind kernel powder purchased from the market is treated chemically by the appellants by adding sodium hydroxide and acetic acid and water. They also add EDTA, preservative and the product is then packed and sold under the Name TPT-12. According to the appellants the process is undertaken to make TKP cold water soluble as the TKP purchased by them from the market is soluble only in hot water. They have contended that even after the process being undertaken by them, TKP continues to be TKP and sold as such in the market. Their plea was accepted by the original adjudicating authority. The Revenue, on the other hand, contends that the chemical reaction carried out is for the purpose of imparting viscosity to TKP in cold water and a new product emerges possessing the properties of gum being used in the printing industry. Revenue has relied upon the HSN Explanatory Notes below Heading 13.02 of the HSN according to which cotyledon flour of tamarind seeds are included in Heading 13.02 even if modified by heat or chemical treatment. The learned Advocate for the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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