JUDGMENT

Thomas, J.-This appeal is in challenge of an order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) repelling the contention of the appellant that the commodity commercial plywood processed by the appellant is not liable to excise duty as the duty was paid for the plywood before its processing.

2. The case of the appellant - company is the following. Appellant is engaged in processing commercial plywood by applying Phenol Formaldehyde Resin under 100 per cent heat and pressure and coats the plywood with wire mesh, either on one side or on both sides so as to make it slip proof commercial plywood. The product is mostly used in body building of vehicles of for flooring etc. On 3.9.1986, the Assistant Collector of Central Excise issued show cause notice to the appellant company, in which it was stated that since non-slip plywood is a different product it is liable to duty as falling under sub-heading 4408-90 (Chapter 44 of the Schedule to the Central Excise Tariff Act, 1985). Appellant in the reply has explained that commercial plywood was once subjected to duty and hence cannot again be made dutiable merely on the strength of the processing done by the appellant. The processed commodity does not become a different product nor the processing exercise a manufacture according to the appellant. Some earlier proceedings, which culminated in refunding the duty collected on such products when the department later realised that no duty was chargeable on such commodity, have also been relied on by the appellant to bolster up its stand.

3. The Assistant Collector took the view that the slip-proof commercial plywood (made after carrying out the processing work) is a different product and so is liable to duty under the relevant sub-heading of the Schedule to the Act.

4. Collector of Central Excise (Appeals) confirmed the said order of the Assistant Collector - CEGAT by the impugned order has concurred with the said finding and dismissed the appeal filed by the appellant.

5. Learned counsel for the appellant first contended that since the department took a view in the earlier proceeding (which culminated in the order passed in 1985) that no new product was emerging from the processing done by the appellant the same benefit has to be afforded to the appellant now also. We are not disposed to decide the question merely on the strength of the stand which the Assistant Collector had adopted prior to 1985. Then counsel invited our attention to the advice tendered by the Board of Central Excise in 1975 that "duty should be charged at the plywood stage as commercial plywood and subsequent alterations etc. should be ignored" (vide CBE & C Bulletin for January-March, 1975). Such an advice is irrelevant in dealing with the tariff prescribed in 1985.

6. CEGAT has considered the factual position whether the process of applying Phenol Formaldehyde Resin on plywood is only a nominal process which does not affect the identity of the commodity or whether it is a substantial process resulting in the emergence of a new commercial product. According to the CEGAT, answer to the question whether any particular processing would result in the emergence of a new commercial product depends on verious factors like - to what extent the value is added, whether the product is prepared for a separate use. In the case of non-slip plywood, after coating it with Phenol Formaldehyde Resin and pressing it with enroller, the department took the view before the CEGAT that it becomes a new product. CEGAT accepted the aforesaid stand of the department and found that application of Phenol Formaldehyde Resin results in the emergence of a new commercial product.

7. Learned counsel for the appellant contended before us that no real change takes place on the plywood despite subjecting the article to heat and pressure to apply the Resin and coating it with wire mesh. But in the light of the finding of the Tribunal that the plywood which appellant purchase