Commissioner of Central Excise, Chandigarh Vs. M/S. Markfed Vanaspati
and Allied Indus. & Ors  Insc 216 (9 April 2003)
S.N. Variava & H.K. Sema. Variava, J.
Appeal (civil) 765-768 of 2001 Appeal (civil)
1074 of 2001 Collector of Central Excise, Chandigarh Commissioner of Central
Excise, Kanpur M/s. Markfed Vanaspati & Allied Industries M/s. Motilal Padampat
These appeals are against the judgment of the
larger bench of the Customs, Excise and Gold (Control) Appellate Tribunal
The question for consideration is whether
"spent earth" is liable to excise duty or not. Under the Tariff,
prior to its amendment in 1985, it had been consistently held that "spent
earth" was not liable to duty.
However, with the enforcement of new Tariff in
1985, a conflict arose between various benches of the Tribunal. Some benches
held that "spent earth" was still not excisable, whereas other
benches held that, as it now stood included by a specific sub-heading, it
became excisable. In view of these conflicting decisions, the matter was placed
before the larger Bench of the CEGAT which by the impugned judgment has held
that "spent earth" was still not dutiable. Hence these Appeals.
The only question for consideration for us is
whether a goods becomes excisable merely because it falls within a tariff item.
After 1985 Tariff item 1507 reads as "residue resulting from the treatment
of fatty substances". It is submitted that "spent earth" is a
residue resulting from treatment and is thus now excisable. What we have to
consider is whether the well settled twin tests of "manufacture and
marketability" cease to apply if a good falls within a tariff entry.
Prior to this Entry being introduced in 1985, it
had been consistently held that "spent earth" was not manufactured.
It had been consistently held that "spent earth" remained
"earth" even after processing. It had been consistently held that all
that happened was that its capacity to absorb was reduced. It had been
consistently held that duty having been paid on "earth", no duty was leviable
on "spent earth" as it remained the same product. It had been held
that to levy duty on "spent earth" would amount to levying duty
twice. It is on this ground that it has been held that "spent earth"
was not excisable.
Even now it has not been shown that there is
manufacture. The only submission is that "spent earth" is a residue
resulting from the treatment of fatty substances. The submission is that now
that there is a specific Entry which makes "residue resulting from the treatment
of fatty substances" excisable, duty has to be paid on "spent
In other words, what is submitted is that merely
because a good falls within one of the Tariff items it becomes excisable.
In support of their submission, reliance is
placed on the case of Lal Woollen & Silk Mills (P) Ltd., Amritsar vs.
Collector of Central Excise, Chandigarh reported in 1999 (4) SCC 466. In this
case the question was whether excise duty was to be paid on dyed worsted woolen
yarn made from duty paid worsted woolen grey yarn. It was argued that there was
no manufacture. The Court however held as follows:
"Admittedly both "dyed yarn" and
"grey yarn" are covered by two separate distinct heads of tariff
items with different duty. So this itself recognizes them to be two different
goods with separate levy. In view of this it cannot be urged that there is no
manufacture of "dyed yarn" from the "grey yarn".
Undoubtedly this authority appears to support
the contention which is raised.
However, it appears to us that the observation
made in this authority are "per incuram". In so observing, the
decision of a larger Bench of this Court in the case of Collector of Central
Excise, Indore vs. Universal Cable
Ltd. reported in 1995 Supp (2) SCC 465, has not been noted or considered. In
this case an argument that a good become excisable because it is covered by
Tariff Entry, has been negatived. In the case of B. P. L. Pharmaceuticals Ltd.
vs. Collector of Central Excise reported in 1995 Supp (3) SCC 1 it has also
been held that merely because there is a change in the Tariff Item the goods
does not become excisable. Subsequently in a judgment dated 13th February, 2003 in Civil Appeal No.
6745 of 1999 it has been held that merely because an item falls in a Tariff
Entry, it does not become excisable unless there is manufacture and the good is
marketable. In Lal Woolen & Silk Mills' case (supra) it has not been held
that the twin test of manufacture and marketability is not to apply. It is not
possible to accept the contention that merely because an item falls in a Tariff
Entry it must be deemed that there is manufacture. The law still remains that
the burden to prove that there is manufacture and that what is manufactured is
on the revenue. In this case no new evidence is placed to show that there is
manufacture. "Spent earth" was "earth" on which duty has
been paid. It remains earth even after the processing. Thus if duty was to be
levied on it again, it would amount to levying double duty on the same product.
Under the circumstances, we find no infirmity in
the impugned judgment. The Appeals stand dismissed. There shall be no order as