of Central Excise, Hyderabad Vs. Jayant Oil Mills Pvt. Ltd.
 INSC 116 (31
Sabyasachi (J) Mukharji, Sabyasachi (J) Pandian, S.R. (J)
1989 AIR 1316 1989 SCR (2) 291 1989 SCC (3) 343 JT 1989 (2) 8 1989 SCALE (1)764
INFO : F 1990 SC 27 (7)
Excises and Salt Act, 1944 -- Sections 36(2) and 35L and Notification No. 9/60
dated February 20, 1960 hy- drogenated rice bran oil used
in manufacture of soap--As- sessibility to excise duty Tariff Item No. 12 or
Item No. 68 of Central Excise Tariff.
question that arises for determination in the ap- peals is whether the
hydrogenated rice bran oil manufactured by the Respondents, could, as claimed
by them, be classified under Tariff Item No. 12.
herein manufacture hydrogenated rice bran oil, which is used as raw material in
the soap-making and in other industries. The Respondent flied a classification
list classifying the said product under Tariff Item No. 12 and claimed exemption
from payment of excise duty.
Collector of Central Excise, who dealt with the matter held that the said Roods
was a new product after manufacture, having a distinct name, Character and use
and u such it fell under Tariff Item 68--CET and not Item 12. The Respondent
preferred an appeal before the Appellate Collector of Central Excise, Madras. The Appellate Collector reversed
the order of the Asstt. Collector and held that hydrogenated rice bran oil is
classifiable under Tariff Item 12-CET and granted the consequential relief. The
order of the Collector was confirmed by the Customs, Excise and Gold (Control)
Appellate Tribunal. Hence the appeal under Section 35 L of the Central Excises
& Salt Act by the Department.
the appeals, the Court,
Indubitably hydrogenation of rice bran 011 Is a process. But all processes need
not be manufacture. It must be such a process which transforms the old articles
Into goods and changes the identity, use and the purpose of use in the goods
undergone by the process. By 292 the process of manufacture a new identifiable
goods, in the market as such must come into being. [295E-F] The melting point
of the hydrogenated rice bran oil is 45degree C and it is in the nature of
extra-hardened vegetable process which is unfit for human consumption. It was
taken to be classifiable under Tariff Item 68-CET. [295F] Rice bran oil is
extracted out of rice bran by solvent extraction method. After such extraction
rice bran oil obtained is in liquid form. The parties purchase rice bran oil
from the market and process it. The process is as follows. The oil is heated to
above 80degree C and the impurities are removed by adding oxalic acid and
caustic lye. The purified oil is then bleached by heating it to 85xC to 100xC and
thereby treating with fullers earth. The processed oil is then hardened by
passing it through hydrogen gas. During, hydrogenation, the oil absorbs two
atoms of hydrogen and the unsaturated ferry acid present in the oil becomes
oil is then in a semi-solid condition and its melting point is raised to 45xC
or more. In the hardened state, the oil looks like Vanaspati (or vegetable
product, to use the Central Excise terminology) but there is a difference in
the degree of hydrogenation of the two. [295H; 296A-C] In order to
differentiate between the edible hydrogenated oils (Vanaspati) and super
hydrogenated vegetable oils, the latter are referred to as extra hardened oil
or super hardened oil. [296C-D] This hardening of oil is necessary for soap-making,
otherwise, the soap, on coming into contract with water is likely to become
soggy. The Respondents use the hardened oil for soap making in their factories.
Besides its use in soap making, the extra-hardened oil is also put to various
other industrial uses, such as for application as greases. [296D- E] It is
obvious that hydrogenated oil is nothing but hardened vegetable oil which would
fail within Item 12 CET for the purpose of Central Excise duty. [300A] Item 12
is more specific than Item 68, for all hardened technical oil not fit for human
consumption and as such, would be covered under this category. [300G ] Tungabhadara
Industries Ltd. v. The Commercial Tax Officer, 293 Kurnool,  2 S.C.R. 14, followed.
v. State of Gujarat, AIR 1980 SC 1889; IVP Ltd. and Anr.
v. Union of India & Ors.,  25 ELT
615 (Bom) and Vital & Vital Oil Pvt. Ltd. v. Collector of Central Excise, Bombay,  21 ELT 166, referred to.
APPELLATE JURISDICTION: Civil Appeal No. 729 of 1983.
Judgment and order dated 20.11.1987 of the Customs Excise and Gold (Control)
Appellate Tribunal, New
Delhi in Appeal No.
F/A No. 1325/83-D (Order No. 920/87-D).
Appeal No. 2479 of 1987.
the Judgment and Order dated 28.2.1986 of the Customs Excise and Gold (Control)
Appellate Tribunal, New
Delhi in Appeal No. ED(SB)
(T) 155/7 I-C (Order No. 18 1/1986-C).
Hemant Sharma and Mrs. Sushma Suri for the Appellant in C.A. No. 729188.
J. Sorabjee for the Appellant in C.A.
No. 2479 of 1987.
N. Salve, Ravinder Narain, P.K. Ram, D.N. Misra and S. Ganesh for the
Judgment of the Court was delivered by:
MUKHARJI, J. This is an appeal under section 35-L of the Central Excises &
Salt Act, 1944 (hereinafter referred to as 'the Act') from the order of the
Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to
as 'CEGAT'). The respondent M/s Jayant Oil Mills Pvt. Ltd.; Hyderabad, manufactures hydrogenated rice
bran oil which was sold to industrial consumers. The said hydrog- enated rice
bran oil is used as raw material in the manufac- ture of soap. The respondents,
M/s Jayant Oil Mills Pvt. Ltd. filed a classification list dated 20th May, 1981 in respect of the said goods classifying
the same under Tariff Item 12 for approval and claimed exemption under notifica-
tion No. 9/60 dated 20th
February, 294 1960.
The Assistant Collector of Central Excise, Hyderabad III Division by an order
dated 16th June, 1981 (held that the hydrogenated rice
bran oil was classifiable under Tariff Item 68 of the Central Excise Tariff
(hereinafter referred to as 'CET'), because hydrogenated rice bran oil is solid
at the ordinary-temperature and therefore should be considered as fat and not
as oil. The Assistant Collector observed that there was one opinion that the
said goods could not fall under Tariff Item 12 as it was unfit for human
Assistant Collector observed that the said goods was new product after
manufacture, having a distinct name, character and .use and as such it fell
under Tariff Item 68-CET. The respondent on the other hand maintained before
the Assistant Collector that the said goods was semi-solid and still vegetable
non-essential oil failing under Tariff Item 12- CET.
dissatisfied with the order dated 16th June, 1981, the respondent appealed before the
Appellate Collector of Central Excise, Madras. By an order dated 30th November, 1981, the Appellate Collector held that hydrogenated rice bran oil is
classifiable under Tariff Item 12-CET and there- fore ordered for consequential
relief to the respondent.
order of the Appellate Collector holding that the said products are
classifiable under Item 12-CET had not been reviewed by the Central Government
under section 36(2) of the Act. The appellate Collector was therefore of the
view that even after the superhardening or hydrogenation vegetable oil did not
cease to be oil even it became solid-.
Central Government, Ministry of Finance, Department of Revenue, being of the
view that the order of the Appel- late Collector was not proper, legal and
correct, issued a show cause notice dated 12th May, 1982 to the respondent.
Central Government informed the respondents in the show cause notice that it
appeared to the Government that the hydrogenation of rice bran oil is a process
of manufacture which brings into existence a new product known as hydroge- nated
rice bran oil in commercial parlance having a distinct name, character and use
and this end product would have been classified under Item 13 had it been fit
for human consump- tion It was further observed in the said show cause notice
by the Government that as the melting point of the hydroge- nated rice bran oil
is more than 45degree C it was of the nature of extra-hardened, vegetable
product which was unfit for human consumption and since it was distinct from vegeta-
ble 295 non-essential oil it would prima facie be classifiable under the
residuary item 68-CET.
respondents were, therefore, called upon to show cause as to why the order of
the Appellate Collector should not be set aside and that of the Assistant
Collector re- stored.
matter came up before the CEGAT. The CEGAT noted in its impugned order that the
appeal was concluded by the judgment of the five member Bench of the Tribunal
in the case of M/s Tata Oil Mills Co. Ltd. (1986 Vol. 24 ELT 290) and held that
the order dated 30th November, 1981 of the Appellate Collector was correct and
dismissed the appeal of the appellant.
necessary, therefore, to refer to the order of the CEGAT. The CEGAT noted that
vide order dated 16th June, 1981 the Assistant Collector classified the
hydrogenated rice bran oil manufactured by the respondents, M/s Jayant Oil
Mills Ltd. under Item 68-CET. The question, therefore, that was urged before
this Court was whether the CEGAT was in error in holding that the hydrogenated
rice bran oil was a process of manufacture which brought into existence a new
product, i.e., hydrogenated rice bran oil.
hydrogenation of rice bran oil is a process.
all processes need not be manufacture. It must be such a process which
transforms the old articles into a goods and changes the identity, use and the
purpose of use of the goods undergone by the process. By the process which can
be considered to be manufacture a new identifiable good, in the sense known in
the market as such must come into being. But that is one part of the view. It
appears, however, that the melting point of the hydrogenated rice bran oil is
45degree C and it is in the nature of extra-hardened vegetable proc- ess which
is unfit for human consumption. It was taken to be classifiable under Tariff
are the facts in Civil Appeal No. 2479 of 1987 before us in the matter of
Collector of Central Excise, Madras v. M/s Tara Oil Mills Co. Ltd. There also,
the CEGAT allowed the appeal of the respondents and held that the extra
hardened rice bran oil continued to remain as oil classifiable under Item
12-CET. It is necessary to decide in both these matters the nature of the
bran oil is extracted out of rice bran by solvent extraction method. After such
extraction, rice bran oil obtained is in liquid form.
The parties purchase rice bran oil from the market and process it. The process
is reported to be as follows. The oil is heated to above 80degree C and the
impurities are removed by adding exalic acid and caustic lye. The purified oil
is then bleached by heating it to 85degree C to 100degree C and thereby
treating with fullers earth. The processed oil is then hardened by passing it
through hydro- gen gas. During hydrogenation, the oil absorbs two atoms of
hydrogen and the unsaturated fatty acid present in the oil becomes saturated.
The oil is then in a semi solid condition and its melting point is raised to
45degree C or more. In the hardened state, the oil looks like vanaspati (or vegeta-
ble product, to use the Central Excise terminology) but there is a difference
in the degree of hydrogenation of the two. The melting point of vanaspati,
which is commonly used as cooking medium, does not exceed 37degree C while the
melting point of hardened rice bran oil in dispute before us is between 45
degree C-52 degreeC. At such high melting point, the oils are no longer edible
by human-beings. In order to differentiate between edible hydrogenated oils (vanaspati)
and super hydrogenated vegetable oils, the latter are referred to as extra
hardened oil or super hard- ened oil. The record before us shows that they are
also known as 'vegetable tallow' or 'hard lump' or 'hardened technical oil of
industrial hard oil' or just 'hardened oil'. This hardening of oil is necessary
for soap making;
the soap, on coming into contact with water, is likely to become soggy. The respondent
use the hardened oil for soap making within their factories. Besides its use in
soap making, the extra hardened oil is also put to various other industrial
uses, such as for application as grease.
dispute started when the appellants filed their classification list containing
the following entry at S. No. 3:
Rice Bran Oil--processed--In barrels--exempted-*33/63-CE dated 1.3.1963 as
amended (*Rule 56A procedure to be followed for out- side despatches)."
The Assistant Collector approved the classification under item 12 CET
(Vegetable non-essential oils, all sorts) with benefit of full exemption from
duty under notification No. 33/63-CE dated 1st March, 1963 as claimed by the appel-
lants for soap making. The Collector, however, was tenta- tively of the opinion
that the Assistant Collector's order was not correct. In exercise of his power
of revision under the then section 35A of the Act, the Collector called upon
the appellant to show cause as to why the hardened oil should not be subjected
to two-stage duty. After hearing the appellants, the 297 Collector passed the
orders by which he confirmed the two- stage duty. Being aggrieved by the
Collector's order, the appellants filed a revision application before the
Central Government which, on transfer of the proceedings to the Tribunal, was
transferred to the Tribunal.
matter was heard by a three-member Special Bench. It was resolved that a larger
bench should be constituted and a larger bench had been constituted. It was
noted by the Bench that irrespective of the fact whether extra hardened rice
bran oil produced by the parties was classified under Item 12 CET of Item 68
CET, it would remain fully exempt. On behalf of the parties, the respondents
herein, it was argued before the Tribunal that hydrogenation or hardening was a
process in the course of manufacture of a soap. The extra hardened oil came
into existence during soap manufacture at an intermediary stage and such oil
was not a new product by itself. Secondly, it was urged that even if the extra
hard- ened oil was considered as a new product, its character still remained
that of oil. It was the same oil though in a hardened or semi-solid form. The
form was not material as it only meant that by application of heat at 45degree
C or more, it would again turn into liquid oil. As such, the oil, even in its
hardened form, continued to remain under Item 12 CET as it still was
essentially oil only. The process of hydrogenation was intended to make the oil
fit for soap making. Only that part of hydrogenated oil as was fit for human
consumption fell under item 13 (vegetable product);
rest remained under item 12--"vegetable non-essential oils, all sorts
..... " Reference may be made to the decision of this Court in Tungabhadara
Industries Ltd. v. The Commercial Tax Offi- cer, Kurnool,  2 SCR 14.
There the appellant purchased groundnuts out of which it had manufactured
also refined the oil and hydrogenated it converting it into Venaspati. It sold
the oil in the three states. Under the Madras General Sales Tax Act, 1939, and
the Turnover and Assessment Rules, for determining the taxable turnover the
appellant was entitled to deduct the purchase price of the groundnuts from the
proceeds of the sale of all groundnut oil. The High Court, in that case, held
that the appellant was entitled to the deduction in respect of the sales of
unrefined and refined groundnut oil but not in respect of the sales of
hydrogenated oil on the ground that the vanas- pati was not "groundnut
oil" but a product of groundnut oil.
Court, however, held that appellant was entitled to the deduction in respect of
the sales of hydrogenated groundnut oil also. The hydrogenated groundnut oil
continued to be "groundnut oil", notwithstanding the processing which
was merely for the purpose of rendering the 298 oil more stable. To be
groundnut oil two conditions had to be satisfied: it must be from groundnut and
it must be "oil". The hydrogenated oil was from groundnut and in its
essential nature it remained an oil. It continued to be used for the same
purposes as groundnut oil which had not under- gone the process. A liquid state
was not an essential char- acteristic of a vegetable oil; the mere fact that hydrogena-
tion made it semi-solid did not alter its character as an oil. In our opinion,
the same principle would be applicable to the facts and the problem herein.
this connection, reference may be made to the obser- vations of this Court in Charapaklal
v. State of Gujarat, AIR 1980 SC 1889 though it was a criminal case, this Court
observed therein that vanaspati was essentially an oil although it was a
different kind of oil than that oil (be it rapeseed oil, cotton-seed oil,
groundnut oil, soyabean oil or any other oil) which forms its basic ingredient.
Oil would remain oil if it retained its essential properties and merely because
it had been subjected to certain processes would not convert it into a
different substance. In other words, although certain additions had been made
to and operations carried out on oil, it would still be classified as oil
unless its essential characteristics had undergone a change so that it would be
misnomer to call it oil as under- stood in ordinary parlance. Such change was
not supported by the evidence in that law. The Tribunal found so and it is a
question of fact that the hydrogenated rice bran oil still remained oil.
behalf of the interveners, it was further submitted before the Tribunal that
Item 12 CET which dealt with vege- table non-essential oils, all sorts, was a
specific, exhaus- tive and all pervasive entry and it continued to cover the
extra hardened oil. Our attention was drawn to the different degree of
be appropriate to refer to the relevant Items in the First Schedule to the
Central Excise Tariff. Item 12 provides as follows:
Vegetable non-essential oils, all sorts, in or in relation to the manufacture
of which any process is ordinarily car- ried on with the aid of power."
Item 13 provides as follows:
'Vegetable Products' means any vegetable oil or fat which, whether by itself
.or in admix- ture with any other substances, has by hydrog- enation or by any
other process been hardened for human consumption. " The Tribunal,
therefore, in our opinion, was right on a conspectus of the relevant factors in
coming to the conclu- sion that edible rice bran oil falling under Tariff Item
12 CET would even after extra hardening continue to fall under Tariff Item 12
and not fall under Tariff Item 68 because it would be vegetable non-essential
oils, all sorts, in or in relation to the manufacture of which any process is ordi-
narily carried on with the aid of power. In that view of the matter, it would
not come within Tariff Item 68. The Tribu- nal, it appears, to us, has
considered the technical side of it, the manner of its production, and in view
of the princi- ple laid down by Tungbhadara Industries Ltd. 's case (supra)
which in our opinion was essentially applicable to the facts of this case. The
Tribunal, in our opinion, came to the correct conclusion.
Pendse of the Bombay High Court in IVP Ltd. and Anr. v. Union of India & Ors.,  25 ELT 615 (Bom) had
occasion to consider some aspects of this problem. It was held by the learned
Judge that the plain reading of Item 13 CET indicated that the vegetable
products which fell 'under that item must be one for human consumption. It was
not in dispute in that case that the product manufactured by the petitioners
was used only for the industrial purposes and not for human consumption and,
therefore, Tariff Item 13 could not be attracted. Whether Tariff Item 12 or
Item 68 would be applicable to the products manufactured by the petitioners, it
is well settled that resort could not be had to the residuary item if the
product comes within the ambit of any other tariff item. It is, therefore,
necessary to ascertain whether Item 12 is applicable for levy of excise duty in
respect of hardened vegetable oil. Tariff Item No. 12 brings in its sweep
"vegetable non-essential oils of all sorts" and the expression
"all sorts" would bring in its ambit hydrogenated oil. There is
hardly any distinction between vegetable oil in liquid form and the
hydrogenated oil which is hardened with a melting point higher than 41 C.
from the distinction in the physical appearance, there is no distinction
between oil and hydrogenated oil which is well supported by the decision of
this Court in Tungbhadra's case (supra) where this Court held that several oils
are viscous fluids but those do harden and . assume semi-solid condition on the
lowering of the temperature.
Therefore, it is obvious that hydrogenated oil is nothing but hardened
vegetable oil which would fall within Item 12 CET for the purpose of central
attention was drawn to Encyclopaedia Britannica, 1968, Vol. 19 p. 302 where
preparation of rice is indicated.
states as follows:
Kernel of rice as it leaves the thresher is enclosed by the hull, or husk and
is known as paddy or rough rice. Rough rice is used for seed and feed for
livestock, but most of it is milled for human consumption by removing the
hulls. Rice is a good energy food, and is consumed in vast quantities in the
Orient. In the Western Hemisphere, however, rice is not the staple cereal food,
except in certain Caribbean islands." Our attention was also drawn to
certain obserVations of the Tribunal in Vital & Vital Oil Pvt. Ltd. v.
Collector of Central Excise, Bombay,  21 ELT 166 where the Tribunal
observed that the department advocates assessment of hard- ened technical oil
under item 68. This item is only for goods not specified anywhere else.
According to Department, "all other goods not specified elsewhere" is
more specific than "vegetable non-essential oils, all sorts". But it
has to be borne in mind that the basic rule of construction is that a more
specific item should be preferred to one less so. It does not take much to see
whether "goods not speci- fied elsewhere" is more specific than
"vegetable non-essen- tial oils" for a product that has an oily
nature, is pro- duced from an oil has the uses of an oil, and indeed looks like
an oil, and is quite commonly accepted and spoken of as an oil and is so
related to oil, that it has a little or no chemical. If hydrogenated oil can
harden, so can many oils if subjected to heat loss (in winter or by chilling).
It appears to us, therefore, that Item 12 is more specific than Item 68, for
all hardened technical oil not fit for human consumption and such would cover
under this category.
aforesaid view of the matter, we are of the opinion that the Tribunal
particularly emphasised that the hardened technical oil is the same thing as
the oil from which it is made. It is clearly akin to the oil in homo- logue, a
product of scientific modification but unaltered in its essential character.
Therefore, in our opinion, the Tribunal was right in the conclusion it arrived
The Tribunal in both the appeals had taken into consid- eration all relevant
and material factors, and market par- lance and borne in mind the correct legal
principles. The decision of the Tribunal, therefore, cannot be assailed.
premises, as both the appeals deal with the same facts, these. are dismissed.
There will, however, be no order as to costs.