1989 PLP 3323 (MLD)

SABYASACHI MUKHARJI, J.--This is an appeal under section 35L(b) of the Central Excises and Salt Act, 1944 (hereinafter called `the Act'). The appeal is directed against the Order of the Customs. Excise and Gold (Control) Appellate Tribunal (hereinafter called the CEGAT'). "'

2. The respondent herein filed a classification list on 16th March, 1982 seeking approval of sawn timber and dried timber as non-excisable. The submission of the respondent was that timber logs were only sawn into sizes and these did not tantamount to any manufacture. However, the Assistant Collector Madras, held that the conversion of timber logs into sawn timber satisfied the conditions of manufacture in so far as the conversion of timber logs into sawn timber involves transformation whereby a new and different article with the distinct name, character or use emerges which is different from timber logs. It was held accordingly that excise duty @ 8% ad valorem under Tariff Item 68 of the erstwhile Central Excise Tariff was leviable.

3. The respondent filed an appeal before the Collector of Appeals who concurred with the Assistant Collector upholding the duty. Aggrieved thereby the respondent filed an appeal before the CEGAT. The Tribunal in the judgment under appeal, relied on its decision in the case of Sanghvi Enterprises, Jammu, Tawi v. Collector of Central - Excise, Chandigarh, (1984) 16 ELT 317 and the Karnataka High Court in the case of Moideen Kunhi v. Collector of Central Excise, Bangalore, (1986) 23 ELT 293 and came to the conclusion that no ntw product emerges by sawing of timber into several sizes. In the premises the Tribunal allowed the appeal of the respondent. Hence, this appeal.

04. It is well-settled that excise duty becomes chargeable only when a new and different article emerges having a distinct name, character and use. See in this connection the observations of this Court in Union of India v. Delhi Cloth and General Mills; 1963 Supp. (1) SCR 586: (A I R 1963 S C 791) and South , Bihar Sugar Mills Ltd. etc. v. Union of India, (1968) 3 SCR 21: (A I R 1968 S C 922). This principle is well-settled. This is a question of fact depending upon the relevant material whether as a result of activity, new and different article emerges having a distinct name, character and use. The use of expression `manufacture' was explained in the case of Allenburry Engineers Pvt. Ltd. v. Ramakrishna Dalmia, (1973) 2 SCR 257: (A I R 1973 S C 425). In State of Orissa v. The Titaghur Paper Mills Co. Ltd., (1985) 3 SCR 26: (A I R 1985 S C 1293) which was a decision on the Orissa Sales Tax Act, this question was considered in the background of the fact whether planks, cut into sizes, etc., sawed out of logs, are different from logs in their nascent state.

5. It may be worthwhile to note that `manufacture' implies a change, but every change is not manufacture and yet every change of an article is the result of P treatment, labour and manipulation. But something more was necessary, and there must be transformation; a new and different article must emerge having a distinct name, character or use. See Union of India v. Delhi Cloth Mills, (supra) at p.596 (of Suppl, SCR): (at p.795 of A I R 1963 SC 791). having regard to the facts found in this case by the Tribunal, which ultimately is the final fact finding authority, we are of the opinion that regard being had to the principles for determining the questions which were correctly applied in the decision of the Tribunal, in the facts of this case, the conclusion of the Tribunal is unassailable.

6. In the premises there is no merit in this appeal and the same is accordingly dismissed. M.BA./115/F.C. Appeal dismissed.