vil Appeals Nos.
359394 of 1989.
From the Order dated 26.5.1988 of the Customs Excise and (;old (Control) Appellate Tribunal, New Delhi in 545 546/88 C in Appeal No. E/COD/699/87 C in Appeal No. E/847/84 C with E/1/85 C. WITH Civil Appeals Nos. 642 643/91, 1723 1731/91.
A.K. Ganguli, Ms. Sushma Suri, P. Parmeshwaran and A. Subba Rao for the Appellant.
Rajinder Sachar, Aruneshwar Gupta, Manu Mridul, P.I. 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. 179/77 CE dated 18.6.1977.
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. " M/s. 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.
M/s. 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 2(1) of the , thus: "2(1). '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 J.K. Cotton Mills vs
S.T. 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 S.C.R. 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 and/or 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 and/or activity and/or 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.
G.N. Appeals allowed.

Summary:
By way of notification dated 18.6.1977, the Central Government exempted from duty all goods falling under Tariff item No. 68 of the First Schedule to the in or in relation to manufacture of which no process was ordinarily carried on with the aid of power.
The respondents in the first set of appeals have been manufacturing crude sodium sulphate.
Since the respondents used diesel pumps for pumping brine into salt pans, in the process of manufacture, the benefit of the said notification was denied to them on the ground that the process of manu facture was carried on with the aid of power.
However, on appeal, the Collector of Customs (Appeals) allowed the benefit to the respondents.
Revenue preferred an appeal and the Tribunal affirmed the Collector 's order.
In the other appeals, the Respondents, manufacturer of lime, used to lift the raw materials to the platform at the head of the kiln by the aid of power and the raw materials were mixed manually into the kiln.
The benefit of the said notification was denied to the Respondents by the Assistant Collector.
Even an appeal before the Collector of Appeals failed.
However, on appeal the Tribunal accepted the claim of the Respondents.
In all these matters the Tribunal took the view that the manufacturing process started from the stage of feeding raw materials into the salt pan or the kiln as the case may be and the transferring of the raw materials was a stage prior to the manufacturing process and so the 125 use of power for such transfer would not disentitle the respondents from the benefit under the said notification.
Aggrieved by the orders of the Tribunal, the Revenue has preferred the present appeals.
Before this Court, the Revenue contended that pumping the brine into the pan or lifting the raw materials to the kiln head was a process in relation to the manufacture of the final product and since that process with the aid of power was integrally connected with the manufacture, the exemption would not apply.
The Respondents contended that if the process carried on with the aid of power does not bring about any change in the raw materials, 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.
Allowing the appeals, this Court, HELD: 1. 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 materials is subjected to the manufactured product emerges.
Therefore, each step towards such production would be a process in relation to 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.
[130 E F).
2.1 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.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be process which consists only in handling and there may be a process which involves no handling or not merely handling but 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 relation to the further process of manufacture.
[130G, 131 A B] 126 2.2 A process is a manufacturing process when it brings out a complete transformation for the whole compo nents so as to produce a commercially different article or a commodity.
But, that process itself may consist of several processes which may or may not bring about any change at every intermediate stage.
But the activities or the opera tions may be so integrally connected that the final result is the production of a commercially different article.
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.
The word 'process ' in the context in which it appears in the notification includes an operation or activi ty in relation to manufacture.
[132H, 133 A B] J.K. Cotton Mills vs
S.T. Officer; , ; Union of lndia vs Delhi Cloth & General Mills, [1963] Supp. 1 SCR 586, relied on.
3.1 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 transfer is then integrally connected with the process of manufacture.
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 an 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 127 anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case when in or in relation to the manufacture the process is carried on with the aid of power.
[133 C G] 3.2 '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, one cannot say that it has been manufac tured.
That does not, however, mean that any operation in the course of such process is not in relation to the manu facture.
[136 E] Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; ; Union of India vs Delhi Cloth & General Mills, [1963] Suppl.
1 SCR 586; Standard Fireworks Industries vs Collector, , relied on.
Nirma Chemical Works & Ors.
vs Union of India & Ors.
, ; Chowgule & Co. Pvt. Ltd. vs Union of India, ; , referred to.