P.C. Jain, Member

1. A common issue is involved in all the aforesaid appeals filed by the Collector of Central Excise, Vadodara, therefore, a common order is being passed.

2. Question involved in this case is whether crushing of dolomite mined into lump form from dolomite mines into its powder and chips forms would amount to process of manufacture. The exact process of manufacture as given in the order-in-original passed by the Assistant Collector of Central Excise is as follows:

After the excavation of the mineral dolomite, it is either sold out as it is in the form of dolomite lumps or brought to the factories for bringing the lumps into smaller shape, that is, in the form of dolomite chips and/or dolomite powder. Dolomite is a mineral product taken out from mines in lumps. To create utility of such lumps it has to be rendered into either powder or in chips form.

3. The learned SDR, Sri. V.M. Doiphode appearing for the appellant-Collector has urged that dolomite in lump form is not usable as such for any purpose. It has to be necessarily made in the form of powder or chips by crushing such dolomite lumps and then only it is rendered into the marketable form. He further states that dolomite is a generic name of the product which is mined but to a purchaser or seller its specific form has to be asked for. If a person wants dolomite in powder form, he would have asked for that specific form of that dolomite. His mere saying that he needs dolomite would be incomprehensible. By this, the learned SDR asserts that by the process of crushing dolomite lumps into powder and chips a new product having a distinct name, character and use has come into existence and therefore, the process of crushing or grinding is a process of manufacture as has been held by the Supreme Court in a number of judgments starting from the well known case of Delhi Cloth General Mills 1978 ELT-J 199 Obviously a reference to 1977 ELT-J 199--Ed. In the aforesaid case the Supreme Court had accepted the meaning of "manufacture" given in Permanent Edition of "Words and Phrases" Vol. 26 from an American Judgment which is as follows:--

Manufacture implies a change, but every change is not manufacture, and yet every change of an article is a result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.

The learned SDR in support of his contention also places strong reliance on Delhi High Court's judgment in the case of Hyderabad Asbestos Cement Products Ltd. v. Union of India 1980 ELT 735. The learned SDR submits that in that case a question arose whether asbestos fibre produced from the asbestos rocks was a result of process of manufacture or not. Hon'ble Delhi High Court applying the aforesaid test laid down by the Supreme Court, came to the conclusion that

asbestos fibre is a marketable commodity and is known to the market and is saleable as such. It is also not disputed that asbestos rock which is mined by the petitioner is as such not saleable in the market. Great and intensive process is required before the asbestos rock which is mined by the petitioner can be converted, transformed and put into the market as asbestos fibre.

…I find it impossible to accept that all the aforesaid processes can be equated to be anything else but manufacture because more especially when only now a marketable commodity has come into existence, which is totally and significantly different from the asbestos rock which was mined in the first instance.

In the instant case as well, emphasises the learned SDR, the marketable commodity dolomite, comes into existence only after crushing and grinding into its forms of powder and chips. He has also placed reliance on the following two judgments:--

(1) Collector of Central Excise, Jaipur v. Oriental Products Pvt. Ltd. MANU/CE/0278/1986.

(2) Brakes India Ltd. v. Superintendent of C.E. MANU/TN/0092/1986.

In the first