K.S. Venkataramani, Member (T)

1. This appeal is directed against the order issued on 3-9-1985 of the Collector of Central Excise (Appeals), Calcutta by which he had upheld the order of the Assistant Collector of Central Excise, Calcutta-I Division dated 16-4-1985 demanding a duty of Rs. 1,93,715.82 from the appellants as central excise duty on the goods cleared by them during the period April, 1983 to September, 1983. The appellants herein are engaged in the manufacture of various Bituminous products. They filed an application with the jurisdictional Assistant Collector on 1-4-1983 seeking exemption under Notification 77/83, dated 1-3-1983 for the financial year 1983-84. The department, however, found on scrutiny that the aggregate value of clearances of all excisable goods falling under Tariff Item 68 and Tariff Item 11 by the appellants had exceeded Rs. 40 lakhs during the preceding financial year 1982-83 and hence they were not eligible for the exemption. This is because para 2 of the Notification 77/83 lays down that nothing contained in the notification shall apply if the aggregate value of clearances of all excisable goods from any factory for home consumption during the preceding financial year exceeded Rs. 40 lakhs. A Show Cause Notice was issued to the appellants on 29-10-1983 demanding a duty of Rs. 1,93,715.82 on the clearances of excisable goods falling under Tariff Item 68 during the period August 1983 to September 1983, availing of the exemption. After considering their reply to the Show Cause Notice and hearing them in the matter the Assistant Collector confirmed the demand on the ground that the product 'Blown Bitumen' was also an excisable product under Item 11 of the Central Excise Tariff and the production of 'Blown Bitumen" by the appellants from 'Straight grade Bitumen' amounted to manufacture of new excisable product which was classifiable under Item 11 of the Central Excise Tariff. The order of the Assistant Collector was also upheld in appeal.

2. Shri S.K. Roychoudhary, the learned Counsel appearing for the appellants contended that the manufacture of Blown Bitumen out of duty paid Straight grade Bitumen will not attract duty and the product Blown Bitumen is not dutiable. He further submitted that in Item No. 11 of the Central Excise Tariff and sub-item (4) thereunder the expression Bitumen has been used in a generic sense without any differentiation between Straight grade and Blown variety. He also cited case law Indian Tool Manufacturers v. C.C.E. reported in MANU/CE/0138/1984 : 1984 (18) ELT 527 (Tribunal) wherein the Tribunal held that while ascertaining a general term used for describing a fiscal legislation, the general term so used covers that commodity or item or article in all its forms and varieties. According to the learned Counsel the term Bitumen is a general term which will include within its ambit all varieties of Bitumens including Blown Bitumen. He further pointed out that Straight grade Bitumen and Blown Bitumen are one and the same in their characteristics. The only difference is in their softening point. He further contended that earlier the Appellate Collector of Central Excise, Calcutta had held that the product is not dutiable and, therefore, the Assistant Collector cannot take a different view. The department had also informed them that the conversion of Straight grade Bitumen into Blown Bitumen is not manufacture and the product is not dutiable.

3. Shri Chakraborthy, the learned D.R. appearing for the department relied upon the Supreme Court's decision in the case of Empire Industries v. Union of India reported in MANU/SC/0186/1985 : 1985 (20) ELT 179 and argued that the ratio of the Supreme Court's decision as to what would constitute manufacture applies in this case and the Blown Bitumen obtained by a process of blowing Straight grade Bitumen is a new product different from Straight grade Bitumen. He also rebutted the argument put forth by the learned Counsel that there can