K.S. Venkataramani, Member (T)

1. This appeal is directed against the order dt. 8-9-1986 passed by the Collector of Central Excise (Appeals), New Delhi. The appellants manufacture limestone chips and powder by grinding and sieving of limestone received from quarries. The Assistant Collector of Central Excise, Saharanpur, by his order dated 11-4-1986, referred to the process of manufacture of lime stone chips and powder by crushing and sieving of limestone to obtain chips of different sizes and powder of limestone; and held that this amounted to a process of manufacture for which he relied upon the amended Section 2(f) of Central Excises Salt Act, 1944 and held the goods to be classifiable under Heading 25.05 CETA 85. This heading covers, inter alia, mineral substances not elsewhere specified, lime, etc. He also denied exemption under Notification 23/55 on the ground that the exemption is only to such goods employed as filler and that limestone chips and powder cannot be considered as fillers. The relevant extract of the Notification is as follows :

"EXEMPTION TO MINERALS ETC. -

In exercise of the powers conferred by Sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts the following items from the whole of the excise duty leviable thereon under Section 3 of the Central Excises Salt Act, 1944 (1 of 1944), namely :-

(1) Minerals, employed either as extenders, suspending agents or fillers or as diluents, namely :Barytes, Bauxite, Bentonite, China Clay, Celestite, Limestone and Chalk (including Precipitated Chalk), Fuller's earth, Gypsum, Mica, Silica, Asbestine, Talc and Slate".

2. The Collector (Appeals), by the impugned order, upheld the Assistant Collector's findings on the excisability of the goods and classification thereof. However, in respect of exemption under Notification 23/55, he agreed that limestone chips are not fillers and hence ineligible. But he directed the Assistant Collector to reconsider the claim in respect of limestone powder as a filler in the light of further evidence.

3. Addressing arguments for the appellants, the Id. Counsel, Sh. J.S. Agarwal, relied upon the case of Vidarbha Ceramics v. CCE -MANU/CE/0153/1988 : 1988 (36) ELT 508 (T) to say that grinding of fireclay lumps into fireclay powder cannot ipso facto be considered as a process of manufacture. Also referred to case of CCE v. Mahavir Minerals Stores Supply Co. - MANU/CE/0254/1988 : 1988 (38) ELT 171 (T) that crushing of dolomite into powder chips does not amount to manufacture. He contended that it is also well-settled that mere change in physical form cannot amount to manufacture and in the present case there was only change in physical form from limestone to chips and powder by crushing, grinding and sieving. No chemical change is involved. As regards eligibility to exemption under Notification 23/55, the Ld. Counsel pointed out that the issue stands settled by the decisions of this Tribunal in the case of CCE v. Madhu Chemicals -MANU/CE/0190/1985 : 1986 (23) ELT 166 (T) and also by its decision, subsequently, in the case of CCE v. Oriental Products -MANU/CE/0278/1986 : 1987 (28) ELT 147 (T) wherein it has been held that for exemption under Notification 23/55, end use specified therein need not be proved. Sh. Jayaraman, the Ld. S.D.R. appearing for the Collector, relied upon the case of Associated Soapstone Distributing Co. v. CCE, Indore -MANU/CE/0141/1985 : 1985 (22) ELT 109 (T) decided by the Tribunal holding that grinding/crushing of soapstone lumps into soapstone powder is manufacture. Also the case of Oriental Talc Products v. CCE - MANU/CE/0157/1984 : 1984 (18) ELT 657 (T) on the same lines relating to conversion of soapstone into soapstone powder. As regards exemption, the Ld. D.R. reiterated the findings of the lower authority and contended that proof that the material was put to uses specified in the notification as fillers, extenders, etc. has to be produced to earn exemption since it is