vil Appeals Nos
359394 of 1989
From the Order dated 2651988 of the Customs Excise and old Control Appellate Tribunal New Delhi in 545 54688 C in Appeal No ECOD69987 C in Appeal No E84784 C with E185 C WITH Civil Appeals Nos 642 64391 1723 173191
AK Ganguli Ms Sushma Suri P Parmeshwaran and A Subba Rao for the Appellant
Rajinder Sachar Aruneshwar Gupta Manu Mridul PI Jose and Sanjay Parekh for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
These appeals by the Revenue under Section 35L of the in volve the interpretation of the Notification No 17977 CE dated 1861977
The Notification read thus In exercise of the powers conferred by sub rule 1 of rule 8 of 128 the Central Excise Rules 1944 the Central Government hereby exempts all goods failing under Item No 68 of the First Schedule to the 1 of 1944 in or in relation to the manufacture of which no process is ordinarily carried on with the aid of power from whole of the duty of excise leviable thereon
Tariff Item 68 during the relevant period read All other goods not elsewhere specified manufactured in a factory but excluding  Ms Rajasthan State Chemical Works the respondents in Civil Appeals Nos
3593 94 of 1989 are manufacturers of crude sodium sulphate
In the process of manufacture of common salt from brine in the salt pans in which the proc ess of evaporation takes place some quantities of sodium sulphate present in the brine also crystalise and settle at the bottom as crust
The sodium sulphate is thus obtained as a bye product
For the purpose of the manufacture brine is pumped into salt pans using diesel pumps
The benefit of the aforesaid notification was not given to these respondents as pumping of brine into the pans was carried on with the aid of power
The claim for exemption though denied by the original authority was allowed by the Collector of Customs Appeals and that order was affirmed by the Tribunal
Ms Sunderson Minerals Ltd the respondents in Civil Appeals Nos
642 643 of 1991 and 1723 1731 of 1991 are manufacturers of lime from coke and lime stone
The raw materials are lifted to the platform at the head of the kiln by the aid of power
At the kiln head the raw materials are mixed manually and fed into the kiln
Since power is used for lifting the raw materials at the kiln head these re spondents were denied the benefit of the notification by the Assistant Collector
The appeal before the Collector of Appeals was dismissed
The Tribunal however accepted the claim of the respondents
The Revenue being aggrieved has challenged the respec tive orders of the Tribunal in these appeals
129 In both these set of cases the view taken by the Tribu nal is that the manufacturing process starts from the stage of feeding raw materials into the salt pan or the kiln as the case may be
The transportation of the raw materials to the platform at the kiln head and the pumping of brine into the salt pan is a stage prior to the commencement of manu facturing process
Therefore the transferring of the raw materials is not a part of the process of manufacture and the use of power for such transfer would not disentitle the respondents from the benefit under the notification
It has been contended before us on behalf of the appel lant that pumping the brine into the pan o lifting the raw materials to the kiln head is a process in relation to the manufacture of the final product and since that process with the aid of power is integrally connected with the manufac ture the exemption would not apply
On the other hand it is reiterated for the respondents that if the process car ried on with the aid of power does not bring about any change in the raw material it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and therefore mere transfer of raw materials by the use of power cannot be considered as a process of manufacture
The Central Government has exempted all goods failing under Item No 68 of the First Schedule to the Act in or in relation to the manufacture of which no process is ordinari ly carried on with the aid of power from the whole of the duty of excise leviable thereon
The exemption under this notification is available only when the goods are manufac tured without the aid of power at any stage of the process
Where manufacture involves series of processes and if anyone of such processes is carried on with the aid of power the case is taken out of the purview of the notification
We have to consider what activity amounts to process in or in relation to manufacture of goods for the application of the notification
The word manufacture  has been defined in Section 21 of the  thus 21 Manufacture  includes any process i incidental or ancillary to the completion of a manufactured product and ii which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the as amounting to manufacture
130 Clause f gives an inclusive definition of the term manufacture  According to the dictionary the term manu facture  means a process which results in an alteration or change in the goods which are subjected to the process of manufacturing leading to the production of a commercially new article
In determining what constitutes manufacture  no hard and fast rule can be applied and each case must be decided on its own facts having regard to the context in which the term is used in the provision under consideration
Manufacture implies a change but every change is not manufacture yet every change of an article is the result of treatment labour and manipulation
Naturally manufacture is the end result of one or more processes through which the original commodities are made to pass
The nature and extent of processing may vary from one class to another
There may be several stages of processing a different kind of processing at each stage
With each process suffered the original commodity experiences a change
Whenever a commodi ty undergoes a change as a result of some operation per formed on it or in regard to it such operation would amount to processing of the commodity
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place
Manufacture thus involves series of processes
Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations
It is the cumulative effect of the various processes to which the raw material is subjected to manufactured product emerges
Therefore each step towards such production would be a process in relation to the manufacture
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient that process is one in relation to the manufacture
The natural meaning of the word process  is a mode of treatment of certain materials in order to produce a good result a species of activity performed on the subject matter in order to transform or reduce it to a certain stage
According to Oxford Dictionary one of the meanings of the word process  is a continuous and regular action or succession of actions taking place or carried on in a defi nite manner and leading to the accomplishment of some re sult
 The activity contemplated by the definition 131 is perfectly general requiring only the continuous or quick succession
It is not one of the requisites that the activi ty should involve some operation on some material in order to its conversion to some particular stage
There is nothing in the natural meaning of the word process  to exclude its application to handling
There may be a process which con sists only in handling and there may be a process which involves no handling or not merely handling but use or also use
It may be a process involving the handling of the material and it need not be a process involving the use of material
The activity may be subordinate but one in rela tion to the further process of manufacture
In JK Cotton Mills vs
ST Officer   this Court in construing the expression in the manufacture of goods  held thus But there is no warrant for limiting the meaning of the expression in the manufacture of goods  to the process of production of goods only
The expression in the manufac ture  takes in within its compass all proc esses which are directly related to the actual production
The Court further held thus The expression in the manufacture of goods  would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture or processing of goods would be commercially inexpedient goods required in that process would in our judg ment fail within the expression in the manufacture of goods 
 In that case the assessee carrying on the business of manufacturing textile goods claimed that certain goods namely drawing material etc
were used in the manufacture
The Court said that if the process of designing is so inte grally connected with the process of manufacturing of cloth there is no reason to regard the process of designing as not being a part of the process of manufacture
The process of designing may be distinct from the actual process of turning out finished goods but there is no warrant for limiting the meaning of the expression in the manufacture of goods  to the process of production of goods only
The expressions  in the manufacture of goods  takes within its encompass all processes which are directly related to the actual produc tion
132 In Union of India vs Delhi Cloth  General Mills 1963 Supp 1 SCR 586 this Court held thus The definition of manufacture  as in section 2 13 puts it beyond any possibility of contro versy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be applicable and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense will not be available In that case it was contended that manufacture is complete as soon as by the application of one or more proc esses the raw material undergoes some change
In answering the contention the Court stated thus We are unable to agree with the learned Counsel that by inserting this defini tion of the word manufacture in section 2 f the legislature intended to equate processing to manufacture and intended to make mere processing as distinct from manufacture in the same sense of bringing into existence of a new substance known to the market liable to duty
The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word manufacture  has been used to mean a process incidental to the manufacture of the article
Thus in the very item under which the excise duty is claimed in these cases we find the words in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power
The definition of manufacture  as in section 2 f puts it beyond any possibility of controversy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be ap plicable and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense will not be available
It is only with this limited pur pose that the legislature in our opinion inserted this definition of the word manufac ture  in the definition section and not with a view to make the mere processing of goods as liable to excise duty
 A process is a manufacturing process when it brings out a complete transformation for the whole components so as to produce a commercially different article or a commodity
But that process itself may consist of 133 several processes which may or may not bring about any change at every intermediate stage
But the activities or the operations may be so integrally connected that the final result is the production of a commercially different arti cle
Therefore any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification
In our view the word process  in the context in which it appears in the aforesaid notifi cation includes an operation or activity in relation to manufacture
The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process but for which the manufacture would be impossible
The handling of the raw materials for the purpose of such trans fer is then integrally connected with the process of manu facture
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process
The use of diesel pump sets to fill the pans with brine is in activity with the aid of power and that activity is in relation to the manufacture
It is not correct to say that the process of manufacture starts only when evaporation starts
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture
Similarly when coke and lime are taken to the platform in definite proportions for the purpose of mixing such operation is a step in the manufacturing process
It precedes the feeding of the mix ture into the kiln where the burning takes place
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed
There fore if power is used in anyone of these operations or anyone of the operations is carried on with the aid of power it is a case where in or in relation to the manufac ture the process is carried on with the aid of power
Learned counsel for the appellant relying on the deci sion of the Gujarat High Court in Nirma Chemical Works  Ors
vs Union of india  Ors  submitted that process means an operation which brings about some change in the raw material
That in the present case the operation of putting the raw materials namely coke red lime 134 stone on the kiln head does not bring about any change in the raw material but the raw materials remain in the same shape as they were when they were brought in the truck and were dumped separately on the ground and therefore this operation can be termed only transportation  and cannot be called a process 
The Gujarat High Court in Nirma Chemi cal Works supra said It must be made clear that it is only at the stage of transferring liquid raw materials from the motor tanker to the storage tank that power is used and at no subsequent stage is any power used
If no change is brought about in the raw material until it reaches the re action ves sel then no process of manufacture can be said to have taken place until the raw materi als are taken to the re action vessel
Till then they are all preparations made but the raw materials continue to be the same raw materials
Until sulphuric acid and alkyd benzene start re acting on each other no change takes place in the raw materials
Merely because the goods are stored in one place may be at an elevated place above the ground it cannot be said that a process of manufacture which would convert the raw mate rial by different stages into the final product has been undergone
In view of the decision in Chowgule  Co s supra as to what is meant by processing it is clear that unless and until some change takes place in the raw material of the original commodity no process can be said to have been gone through
Before any operation can be characterised as a process the commodity must as a result of the operation experience some change
 Counsel for the respondents submitted that a process in or in relation to the manufacture commences as soon as the change is brought about in the raw material and ends till the manufactured product is marketed
Until some change physical or chemical is brought about in the raw material there is no process in or in relation to the manufacture
Mere collecting storing or dealing with the raw material are operations andor activities prior to the beginning of process
Mere physical alteration of the site or placement of raw materials or stacking storing the same cannot be said to be a process in relation to manufacture
In the case of preparation of sodium sulphate it is said that the process in or in relation to manufacture commences after the brine is placed in the salt pans
The counsel 135 submits that if every operation andor activity andor action is treated as a process  in or in relation to manu facture then power is used in i erection of factory where steel cement bricks etc
are used ii day to day trans portation and iii use of electricity for lights fans etc
These arguments are far fetched
The activity in relation to which power is used is not to be considered into isolation where the activity is such that it forms an integral part of the whole process
The Gujarat High Court in interpreting the word process  has assumed that process  is synonymous to processing  and has drawn support from the observations of this Court in Chowgule  Co Pvt Ltd vs Union of India  We are afraid the observations had not been properly understood or applied in drawing inference that process when used in relation to manufacture must be one that produces a change in the commodity
It has been made clear in Dy
Commissioner Sales Tax Ernakulam vs Pio Food Packers  that Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass
The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps a different kind of processing at each stage
With each process suffered the original commodity experiences a change
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that manufacture can be said to take place It has been made clear in Union of India vs Delhi Cloth  Genera Mills supra that the definition of the word manufacture  in Section 2 f puts it beyond any possibili ty of controversy that if the power is used for any of the numerous processes that are required to turn the raw materi als into a finished article known to the market it would be a case where in or in relation to manufacture process has ordinarily been carried on with the aid of power
It is therefore wrong to conclude that every operation in the course of the manufacture should bring about a change and if any operation with the aid of power does not result in a change it cannot be an integral part of the process in or in relation to manufacture
In Chowgule  Co Pvt
Ltd case what this Court said is that 136 Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it such operation would amount to processing of the commodity
 What is necessary in order to characterise an operation as processing is that the commodity must as a result of the operation experience some change
The question is not whether there is manual application of energy or there is application of mechanical force
Whatever be the means employed for the purpose of carrying out the operation it is the effect of the operation on the commodity that is material for the purpose of determining whether the opera tion constitutes processing
In drawing the distinction between processing  and manufacture  this Court observed in Delhi Cloth Mills case thus To say this is to equate processing to manufacture and for this we can find no warrant in law
The word manufacture used as a verb is generally understood to mean as bringing into existence a new substance and does not mean merely to produce some change in a substance however minor in consequence the change may be Thus processing may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage we cannot say that it has been manufac tured
That does not however mean that any operation in he course of such process is not in relation to the manu facture
While interpreting the same exemption notification in Standard Fireworks Industries vs Collector  it was held that manufacture of fireworks requires cutting of steel wires and the treatment of papers red therefore it is a process for manufacture of goods in question
The Notification purports to allow exemption from duty only when in relation to the manufacture of goods no process is ordinarily carried on with the aid of power
It was observed that cutting of steel wires or the treatment of the papers is a process for the manufacture of goods in question
We are therefore of the view that if any operation in the course of manufacture is so integrally connected with the further operations which result in the emergence of manufactured goods and such operation is carried on with the aid of power the process in or in relation to the manufac ture must be deemed to be one carried on with the aid of power
In this 137 view of the matter we are unable to accept the contention that since the pumping of the brine into the salt pans or the lifting of coke and lime stone with the aid of power does not bring about any change in the raw material the case is not taken out of the Notification
The exemption under the Notification is not available in these cases
Accordingly we allow these appeals
In the facts and cir cumstances of the case we make no order as to costs
GN Appeals allowed


Summary:
The appellants owners of the premises in question obtained a decree of eviction against the tenant Respondent No 7
While the decree was under challenge before the High Court Respondent Nos 1 to 5 approached the High Court under article 226 of the Constitution claiming that being members of Joint Hindu Family alongwith the lather of Respondent No 7 they were tenants in their own right under the appellants and were not bound by the decree since they were not parties in the eviction case
The appellants denied the claim of independent right of the respondent Nos 1 to 5 and alleged that they had been subsequently inducted in the premises as sub tenants by respondent No 7
The High Court held that since the claim of the Respond ent Nos 1 to 5 was not examined and decided in the suit and the decree was passed against Respondent No 7 only they could not be evicted from the premises
Allowing the appeal preferred by the landlord appel lants this Court HELD 11 The remedy provided under article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions
The jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like appellate Court
122 E F State of Andhra Pradesh vs Chitra Venkata Rao   Thansingh Nathmal  Ors
A Mazid  and M Naina Mohammed vs KA Natarajan  Ors 1976 1 SCR 102 relied on
120 12 The Civil Procedure Code contains elaborate and exhaustive provisions for dealing with executability of a decree in all its aspects
The numerous rules of order XXI of Civil Procedure Code take care of different situations providing effective remedies not only to judgment debtors and decree holders but also to claimant objectors as the case may be
In an exceptional case where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time the answer is a regular suit in the civil court
The remedy under the Code is of superior judicial quality than what is generally available under other statutes and the judge being en trusted exclusively with administration of justice is expected to do better
It will be therefore difficult to find a case where interference in writ jurisdiction for granting relief to a judgment debtor or a claimant objector can be justified
Rules 97 to 106 of Order XXI envisage questions to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment the deci sion has been made appealable like a decree
123C E 13 In the instant case it was necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of Respondent Nos 1 to 7 before proceeding to consider whether the decree is executable or not against them and having not done so the High Court has seriously erred in law in allowing the writ petition filed by them
The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties and while exercising the writ jurisdiction the High Court was not expected to go into that question and ought not to have embarked upon a decision on merits and should have refused to exercise the special jurisdiction on the ground of alternative remedy before the civil court
122 B D