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11. Tribunal in the case of Poonam Spark Pvt Ltd., v. Commissioner of Central Excise, Delhi held that assembly of various components received from another company on a base plate bring into existence a new and commercially different commodity known as water purification and filtration system. In an another decision of the Tribunal in the case of Shriram Pistons & Rings Ltd., v. Commissioner of Central Excise, it was held that the activity of matching the size and other specifications of the piston rings with other rings and supplying them after making a coil piston ring set to be used in a particular model of motor vehicle will result in emerges of a new and different article and the process would amounts to manufacture. In the case of Satnam Overseas Ltd., v. Commissioner of Central Excise, New Delhi, , mixing of raw rice, dehydrated vegetables and certain spices and condiments in a pre-determined proportion and blending them together in a mixer for uniformity and heating the blended mixer to sterilize the product and then packing the same in pouches with nitrogen flushing for a longer shelf life was held to be a manufacturing activity resulting in the manufacture of a new commodity known as a distinct and separate commodity having its own character, use and name.

Jyoti Balasundaram, Vice President

29. I have heard both sides on the difference of opinion between the Members of the Original Bench. The issue relates to excisability of "custom pack" consisting of Plastic tubes, Connectors, Blood Filters, Caps, Oxygen Filters, etc. While the ld.Member(J) has held that the product is a result of manufacture falling for classification under CET Sub-heading 9018.00 attracting duty at the appropriate rate and that the appellants are also liable to penalty, the ld.Member(T) has held that the product in question is not manufactured goods and for that reason no excise duty is attracted. The process involved in making "customs pack" has been set out in para 23 of the order recorded by the ld.Member(T) and is hence not being reproduced by me. As correctly noted by him, 'pack' is not a name of any product and a pack can be of any item or items. In the present case, the items are associated things for heart surgery, all the items assembled in the 'customs pack' were already in existence and were only arranged together in a particular order for ready use as a set. The packing or assembling of the items in a particular order is not a process amounting to manufacture. Further, the classification adopted in the impugned order viz. CET Sub-heading 9018.00 is also not correct for the reason that the heading during the relevant period covered 'instruments and appliances used in medical, surgical, dental or veterinary science including ... while the customs pack is not instrument or appliance but merely a collection of accessories for heart surgery. It would be relevant to consider the decisions relating to excisability of packing. The ld.M(T) has considered case laws relevant in the context of excisability of packing viz. Tribunal's decision in T.I. Diamond Chain Ltd. which has been approved by the Supreme Court and A.D.I. Enterprises to hold that packing various items in a kit does not amount to manufacture. The ld.SDR has not cited any decisions to the contrary on excisability of packing. He, however, relies on certain decisions to support his argument that a new product having different name, character and use comes into existence as a result of process carried out by the appellants on the imported items. However, these decisions are distinguishable from the facts of the present case. In the case of Narne Tulaman Manufacturers Pvt.Ltd. v. CCE , the Apex Court held that the activity of assembling of three components viz. Platforms, load cell and indicating system amounts to manufacture for the reason that it brings into existence a weighbridge, which is a new product known to the market, in B.P.L. India Ltd. , the Supreme Court held that assembly of imported kits of VTR with colour monitors imported in disassembled/SKD condition falling under T.I.68 of erstwhile Central Excise Tariff for levy of countervailing duty amounts to manufacture, upholding the Tribunal's finding that after undergoing the process of manufacture for the assembly, the product at the time of clearance from the factory was classifiable under T.I. 37BB and therefore, a transformation in the character of the imported goods took place and a new product is emerged. In Hindustan Zinc Ltd the Apex Court held that the attachment of lead and aluminium sheets with headers to see that lead and aluminium sheets become positive and negative electrodes so that current can pass through them, amounted to manufacture as the sheets were converted into electrodes which is a new product known to the market with distinct name, character and use. In the case of Poonam Spark P. Ltd. also, the same reasoning viz. emergence of a new and commercially different commodity i.e. Water purification and Filtration system, lead the Tribunal to hold that the assembly of various components such as Filter Housing Cartridge, U.V.Units, Timer, Tubings and Fittings etc. amounted to manufacture. In Shriram Pistons & Rings ltd. , the Tribunal held that since new and different article having distinct character and use emerges as a result of making coil piston ring set for use in a particular model of motor vehicle, the process carried out by the appellants amounted to manufacture within the meaning of Section 2(f) of Central Excise Rules, 1944. In Satnam Overseas Ltd. , a new product classifiable under Chapter Heading 21.08 of the Schedule to the CETA 1985, consisting of raw rice mixed in a pre-determined proportion with dehydrated vegetables, spices and condiments, emerged as a result of mixing and the product no longer remains the product of milling industry classifiable under Chapter 11 but becomes an edible preparation classifiable under Chapter 21.

30. The common thread running through all these cases is the emergence of a new and commercially different commodity, having a different name, character and use. However, in the present case, no new product emerges as a result of cutting tubing with connectors, tubing with blood filter/oxygen filter and packing the same in ready to use condition for heart surgery, so as to hold the process as amounting to manufacture and liability to duty.

31. In the light of the above discussions, I concur with the view of the ld.Member(Technical).