COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IVversusMIS. FITRITE PACKERS, MUMBAI

                    [2015] 12 S.C.R. 851


    COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV                    A
                               v.
             MIS. FITRITE PACKERS, MUMBAI
               (Civil Appeal No. 2733 .of 2007)
                                                                  B
                    "OCTOBER 07, 2015
    [A. K. SIKRI AND ROHINTON FALi NARIMAN, JJ.]
       Central Excise Act, 1944: s. 2(f)- Manufacture- Printing
on duty paid GI paper- Process of printing carried out by the C
assessee according to the design and specification of the
customer depending on its requirement - Bulk orders
received from customer, which needed said paper as a
wrapping/packing paper for packing of its goods - On the
paper, logo and name of the product is printed in colourful       o
form -After carrying out the printing as per the requirement
of the customer, the same is delivered to the customer in
jumbo rolls without slitting - Whether the process of printing
amounts to manufacture - Held: If the transformation in the
 original article brings out a distinctive or different use in the E
article then the same would amount to manufacture - In the
instant case, process ofparticular kind of printing has resulted
into paper with distinct character and use of its own which it
did not bear earlier - Therefore, the test of no commercial
user without further process would be applied - The process F
of printing thus amounted to manufacture. .
      Allowing the appeal, the Court
      HELD: No doubt, the paper in-question was meant
for wrapping and this end use remained the same even G
after printing. However, whereas blank paper could be
used as wrapper for any kind of product, after the printing
of logo and name of the specific product of Parle
thereupon, the end use was now confined to only that
particular and specific product of the said particular H
.                             851
852        SUPREME COURT REPORTS                  [2015] 12 S.C.R.

A company/customer. The printing, therefore, is not merely
  a value addition but has now been transformed from
  general wrapping paper to special wrapping paper. In
  that sense, end use has positively been changed as a
  result of printing pro~ess undertaken by the assessee.
B The process of the said particular kind of printing has
  resulted into a product, i.e., paper with distinct character
  and use of its own which it did not bear earlier. Thus,
  the 'test of no commercial user without further process'
  would be applied. This Court in *Sen10-Med Industries
C Pvt. Ltd. emphasised that there has first to be a
  transformation in the original article and this
  transformation should bring out a distinctive or different
  use in the article, in order to cover the process under
  the definition of 'manufacture'. These tests are satisfied
D in the present case. [Paras 10, 12] [859-C-F; 860-F-G]
           *Servo-Med Industries Pvt. Ltd. v. Commissioner
           of Central Excise, Mumbai 2015 (319) ELT 578
           (SC) - relied on.
 E         Union of India v. J.G. Glass Industries Ltd. 1998
           (97) ELT 5 (SC); Deputy Commissioner of Sa/es
           Tax (Law), Board of Revenue (Taxes), Emaku/am
           v. Pio Food Packers 1980 (6) E.L.T. 343 (SC) -
           referred to.
 F
                        Case Law Reference
                    -
      1998 (97) ELT 5 (SC)         referred to.           Para 5
      2015 (319) ELT 578 (SC)      relied on.             Para 8
      1980 (6) E.L. T. 343 (SC)    referred to.           Para 8
 G
           CIVIL APPELLATE JURISDICTION : CIVIL APPEAL
      No. 2733 of 2007
       From the Judgment and Order No. A/909-910/WZB/
   MUM/2006-C-IV/EB dated 27.03.2006 of the Customs, Excise
 H and Service Tax Appellate Tribunal, West Zonal Bench at
 COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV v.                   853
        M/S. FITRITE PACKERS, MUMBAI

Mumbai in Appeal Nos. E/809 & 810/05                            A
      K. Radhakrishnan, Sr. Adv., Ms. Shirin Khajuria, Ms.
Swarupama Chaturvedi, B. Krishna Prasad, Adv., with him,
for the Appellant.
     M. H. Patel, Sandeep Narain, Padmavat Patil, M/s S.        B
Narain & Co., Adv., for the Respondent.
     The Judgment of the Court was delivered by
     A. K. SIKRI, J. 1. The dispute between the parties arose
on two issues, viz.:                                            c
     (i) Whether the goods in question, i.e., printed GI paper
         are classifiable under Chapter heading 4811.90, as
         claimed by the Revenue or they were to be classified
         under Chapter heading 4901.90 as the product of
                                                               0
         printing industry, as· per the stand taken by the
         respondenUassessee?

     (ii) Whether printing on duty paid GI paper would amount
          to manufacture?
                                                                E
       2. The Tribunal vide impugned judgment dated March
27, 2006 has decided the first issue in favour of the Revenue
classifying the goods under Chapter heading 4811.90 thereby
holding that the goods fall within the description of 'printing in
rolls or sheets'. The assessee has not challenged the aforesaid F
classification as accorded by the Tribunal and, therefore, the
issue of classification has attained finality.

     3. Insofar as other question is concerned, the Tribunal
has decided that the process of printing of GI paper does not G
amount to manufacture. Aggrieved by such a conclusion on
the second issue, the Revenue is in appeal before us.
Therefore, this is the only issue that needs to be determined in
the instant appeal which has arisen under the following
circumstances:                                                   H
854            SUPREME COURT REPORTS               [2015] 12 S.C.R.


A         The respondent/assessee herein purchased GI paper
   from the market which is already duty paid base paper. On
   this paper, the process of printing is carried out by the assessee
   according to the design and specifications of the customers
   depending on their requirements. This printing is done in jumbo
 B rolls of GIP twist wrappers. Bulk orders are received from Parle,
   which needs the said paper as a wrapping/packing paper for
   packing of their goods. On the paper, logo and name of the
   product is printed in colorful form. After carrying out the printing
   as per the requirement of the customers, the same is delivered
 C to the customers in jumbo rolls without slitting. The issue is as
   to whether this printing process amounts to manufacture or
    not?
         4. Various show cause notices were issued and orders
 D were passed by the adjudicating authority thereupon holding
   that the aforesaid process would be treated as manufacture
   and, thus, the respondent/assessee was liable to pay excise
   duty thereon.
         5. The Tribunal while upsetting the aforesaid decision of
 E the Commissioner has arrived at a conclusion that printing is
   only incidental and primary use of GI printing paper roll is for
   wrapping which is not changed by the process of printing.
   While coming to this conclusion, the Tribunal has primarily
 F relied upon the judgment of this Court in Union of/ndia v. J.G
      Glass Industries Ltd. 1
         6. Questioning the veracity of the aforesaid conclusion
   of the Tribunal, Mr. K. Radhakrishnan, learned senior counsel
   appearing for the Revenue argued that, no doubt, paper in-
 G question was meant for wrapping/packing of the goods of the
   customer but that was not the determinative factor and a vital
   feature/aspect which was missed by the Tribunal was that after
   printing the said GI paper rolls, it was used for specific purpose
   which was not possible with the plain paper. In support, some
 H    1
          1998 (97) ELT 5 (SC)
     COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV v.                 855
       M/S. FITRITE PACKERS, MUMBAI [A. K SIKRI, J.]

 decisions of this Court were cited.                              A
       7. Learned counsel for respondent, on the other hand,
 argued that the approach of the Tribunal was perfectly justified
 which was in consonance with the principle laid down by this
 Court in J.G Glass Industries (supra). According to him, the
                                                                  8
 Tribunal had rightly held that the primary purpose for which GI
 paper is used is the wrapping/packaging and even after GI
 paper was printed, the essential functioning of this paper
 remained the same, namely, wrapping and had not changed
 by the process of printing. He, thus, submitted that no c
 interference in the decision of the Tribunal was called for.
        8. We have considered the aforesaid submissions of the
 learned counsel for the parties. In order to discern the principles
 that are to be applied for ascertaining as to whether a particular
 process amounts to manufacture within the meaning of Section D
 2(f) of the Central Excise Act, 1944 (hereinafter referred to as
 the 'Act'), it is not necessary to refer to various case laws on
 the subject. Our purpose would be served by referring to a
 recent decision, which was rendered by this very Bench, in the
 case of Servo-Med Industries Pvt. Ltd. v. Commissioner E
 of Central Excise, Mumbai2. Our reason for saying so is
 that in this decision many earlier judgments are taken note of,
 considered and principles laid down therein are culled out.
 The judgment in the case of J.G. Glass Industries (supra) F
 was also taken note of and discussed. There is an elaborate
 discussion on the following aspects, covering the entire
 spectrum:
         (i) Distinction between manufacture and marketability:
        It is pointed out that whereas excisable goods signifies G
. that the goods are capable of being sold in the market, the
  manufacture is distinct from saleability. Manufacture takes place
  on the application of one or more processes and each process
 2
     2015 (319) ELT 578 (SC)                                      H
856          SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A may lead to a change in the goods but every change does not
     amount to manufacture. To bring the process within the
 :.. definition of 'manufacture' under Section 2(f) of the Act, it is
     essential that there must be a transformation by which
     something new and different comes into being, i.e., there must
B now emerge· an article which has a distinctive name, character
     or use.
            (ii) The judgment also explains the circumstances when
      transformation does not take place:
 C          Examples are given when character and use remains
      the same or when foreign matter is removed from an article or
      additions are made to the article to preserve it or increase its
      shelf life or when no change occurs in the name, character or
      use of the product.
 D
         (iii) It was noted that when essential character of the
   product does not undergo change there would be no
   manufacture. The Court explained 'retaining of essential
   character test' to mean that the p_CQ.duct in its primary and
 E essentia I character remaiftirthe same even after the process
   in-question and the product is sold in the market with its earlier
   character. Following passage from Deputy Commissioner
   of Sales Tax (Law}, Board of Revenue (Taxes}, Ernaku/am
   v. Pio Food Packers 3 , was quoted which drew a line between
 F cases in which essential character had changed and those in
   which no such change had taken place.
            "19. Interestingly, a line was drawn between cases in
            which the essential character had changed and those in
            which no such change had taken place in the following
 G          terms:
             "5. A large number of cases has been placed before us
             by the parties, and in each of them the same principle
             has been· applied: Does the processing of the original
 H    3 1980 (6) E.L.T. 343 (SC)
 COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV v.                       857
   M/S. FITRITE PACKERS, MUMBAI [A. K. SIKRI, J.]

     commodity bring into existence a commerdally different         A
     and distinct article? Some of the cases where it was held
     by this Court that a different commercial article had come
     into existence include Anwarkhan Mehboob Co. v. The
     State of Bombay and Ors. (where raw tobacco was
     manufactured into bidi patti), A. Hajee Abdul Shukoor          B
     and Co. v. The State of Madras (raw hides and skins
     constituted a different commudity from dressed hides
     and skins with different physical properties), The State
     of Madras v. Swasthik Tobacco Factory (raw tobacco
     manufactured into chewing tobacco) and Ganesh Trading          C
     Co. Kamal v. State of Haryana andAnr., (paddy dehusked
     into rice). On the other side, cases where this Court has
     held that although the original commodity has undergone
     a degree of processing it has not lost its original identity
                                                                    0
     include Tungabhadra Industries Ltd., Kurnool v.
     Commercial Tax Officer, Kurnool (where hydrogenated
     groundnut oil was regarded as groundnut oil) and
     Commissioner of Sales Tax, U.P., Lucknow v. Harbiles
     Rai and Sons (where bristles plucked from pigs, boiled,        E.
     washe.d with soap and other chemicals and sorted out in
     bundles according to their size and colour were regarded
     as remaining the same commercial commodity, pigs
     bristles)."
     This Court also explained the principle that where there F
was no commercial user without further process then the said
process would amount to manufacture labelling it as 'test of
no commercial user without further process'.
     (iv) Another circumstance was taken note of and G
discussed which involves integrated process, culling out 'the
test of integrated process without which manufacture
would be impossible or commercially inexpedient'. It was,
thus, explained that where the manufacture involves series of
processes, i.e., various stages through which the raw-material H
858       SUPREME COURT REPORTS                  (2015] 12 S.C.R.


A is subjected to change by different operations, each step
  towards such production would be a process in relation to the
  manufacture.
        9. On the basis of aforesaid discussion and formulation
  of certain tests to ascertain whether a particular process would
8
  amount to manufacture or not, the Court culled out four
  categories of cases in its conclusion in para 27 of the judgment.
  We reproduce these categories hereunder:
         "27. The case law discussed above falls into four neat
c        categories.
         (1) Where the goods remain exactly the same even after
         a particular process, there is obviously no manufacture
         involved. Processes which remove foreign matter from
         goods complete in themselves and/or processes which
 D
         clean goods that are complete in themselves fall within
         this category.
         (2.) Where the goods remain essentially the same after
         the particular process, again there can be no
 E       manufacture. This is forthe reason that the original article
         continues as such despite the said process and the
         changes brought about by the said process.
         (3) Where the goods are transformed into something
 F       different and/or new after a particular process, but the
         said goods are not marketable. Examples within this
         group are the Brakes India case and cases where the
         transformation of goods having a shelf life which is of
         extremely small duration. In these cases also no
 G       manufacture of goods takes place.
          (4) Where the goods are transformed into goods which
          are different and/or new after a particular process, such
          goods being marketable as such. It is in this category
          that manufacture of goods can be said to take place."
 H
 COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV v.                      859
   MIS. FITRITE PACKERS, MUMBAI [A. K. SIKRI, J.]

        10. On the facts of the present case, it is to be determined A
as to whether the case would fall under category (2) or category
(4). We have already taken note of printing process. A cursory
look into the same may suggest, as held by the Tribunal, that
GI paper is meant for wrapping and the use thereof did not
undergo any change even after printing as the end use was B
still the same, namely, wrapping/packaging. However, a little
deeper scrutiny into the facts would bring out a significant
distinguishing feature; a slender one but which makes all the ·
difference to the outcome of the present case. No doubt, the
paper in-question was meant for wrapping and this end use C
remained the same even after printing. However, whereas
blank paper could be used as wrapper for any kind of product,
after the printing of logo and name of the specific product of
Parlf> thereupon, the end use was now confined to only that
                                                                     0
particular and specific product of the said particular company/
customer. The printing, therefore, is not merely a value addition
but has now been transformed from general wrapping paper
to spec !al wrapping paper. In that sense, end use has positively
been changed as a result of printing process undertaken by E
the assessee. We are, therefore, of the opinion that the process
of aforesaid particular kind of printing has resulted into a
product, i.e., paper with distinct character and use of its own
which it did not bear earlier. Thus, the 'test of no commercial
user without further process' would be applied as explained in F
paragraph 20 of Servo-Med Industries (supra). The
aforesaid paragraph is extracted hereunder.
     "20. In Brakes India ltd. v. Superintendent of Central
     Excise (1997) 10 SCC 717, the commodity in question
     was brake lining blanks. It was held on facts that such G
     blanks could not be used as brake linings by themselves
     without the processes of drilling, trimming and
     chamfering. It was in this situation that the test laid down
     was that if by adopting a particular process a H
860         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A          transformation takes place which makes the product
           have a character and use of its own which it did not bear
           earlier, then such process would amount to manufacture
           irrespective of whether there was a single process or
           several processes."
 B
            11. The ratio thereof is explained in paragraph 24 in the
      following words:
           "24. It is important to understand the correct ratio of the
           judgment in the J. G. Glass case. This judgment does
 c         not hol~ ~hat merely by application of the second te~t
           without n1ore manufacture comes into being. The Court
           was at pains to point out that a twofold test had ernerCled
           for deciding whether the process is that of manufactu.-e.
           The first test is extremely important- that by a process,
 D          a different commercial commodity must come into
            existence as a result of the identity of the original
            commodity ceasing to exist. The second test, namely
            that the commodity which was already in existence will
            serve no purpose but for a certain process must be
 E
            understood in its true perspective. It is only when a
            different and/or finished product comes into existence
            as a result of a process which makes the said product
            commercially usable that the second test laid down in
            the judgment leads to manufacture..... "
 F
         12. This Court emphasised that there has first to be a
   transformation in the original article and this transformation
   should bring out a distinctive or different use in the article, in
   order to cover the process under the definition of'manufacture'.
 G These tests are satisfied in the present case.
            13. As a result, present appeal is allowed setting aside
      the order of the Tribunal and restoring the Order-in-Original
      passed by the Adjudicating Authority.
 H    Devika Gujral                                     Appeal allowed