JUDGMENT B.P. JEEVAN REDDY, J. (1) IN this appeal preferred by the Collector, central Excise, Bombay under Section 35-E of the central Excises and Salt Act, 1944 (hereinafter referred to as "the. Act"), the question is whether the distillation and re-crystallization carried out by the respondent amounts to manufacture? The respondents, M/s S.D. Fine Chemicals Pvt. Ltd., are engaged in the manufacturing of laboratory chemicals and fine chemicals. They also underlake repacking and purification of laboratory and fine chemicals. In the classification list filed by them on 1/4/1983, they claimed that the process of purification and distillation undertaken by them does not amount to process of manufacture and accordingly, claimed exemption from duty in respect of such goods under Notification No. 77 of 1983 dated 1/3/1983. The Assistant Collector agreed with the respondents but his order was revised by the Collector (Appeals) who held that the processes undertaken by the respondents do amount to manufacture. Inasmuch as a new commodity known to the market emerges as a result of such processes, he held, they are liable to excise duty. The respondents filed an appeal betore the Customs, Excise and Gold (Control) Appellate tribunal, New Delhi which was heard in the first instance by a bench of two Members. The Member (Technical) agreed with the respondents. He held that the process undertaken by the respondents is merely for improving the equality or purity of the chemicals and does not amount to manufacture. He observed that even after purification, the chemicals are known by the very same name and that there was no change in the chemical formula even after purification. The simple process of distillation and re-crystallization of the chemicals does not amount to manufacture for the purposes of the Act, he held. The Member (Judicial) however, took a contrary view. He was of the opinion that the process undertaken by the respondents is not a simple process and that the said process "brings in a transformation which will change the name, character and use". The Member (Judicial) further observed, "the ordinary chemicals cannot be used in laboratory without it undergoing purification. They are traded in different commercial names and has altogether different use. So long as the trade recognises it as a different commodity and its uses are different, the item has to be recognised as a different goods and became excisable goods". The Member (Judicial) further observed, "the ordinary chemicals cannot be used in laboratory without it undergoing purification. They are traded in different commercial names and has altogether different use. So long as the trade recognises it as a different commodity and its uses are different, the item has to be recognised as a different goods and became excisable goods". In view of the difference of opinion between the two Members, the matter was referred to a third Member. The third Member held in favour of the respondents-manufacturer on the following reasoning "AS can be gathered, the key test is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity. In my view in the inslant case this test has not been satisfied as the chemical prior to the two processes concerned herein continues to remain the same after being subjected to the processes, admittedly with only a change in increase in purity. The commodity retains its identity substantially through the processing stage. Therefore, it cannot be said to have been manufactured." (2) IT would be evident from the opinion of the third Member that he did not deal with the several aspects dealt with in the opinions of the two differing Members. He did not also indicate whether he agrees or disagrees with the findings recorded by the Member (Judicial), viz., that after the processes undertaken by the respondents, the chemical bears a different chemical name and have an altogether different use. The third Member did not also deal with the holding of the Member (Judicial) that after the processes undertaken by the respondents, the chemical became a different commercial commodity. (3) THE expression manufacture is defined in clause (f) of Section 2 of the Act. The definition, as substituted by Finance Act (No. 25 of 1975, will) effect from 1/3/1975 (sic by Act 5 of 1985 w.e.f. 28/2/1986 reads thus: " manufacture includes any process,- (I) incidental or ancillary to the completion of a manufactured product: (II) which is specified in relation to any goods in the section or Ch. The definition, as substituted by Finance Act (No. 25 of 1975, will) effect from 1/3/1975 (sic by Act 5 of 1985 w.e.f. 28/2/1986 reads thus: " manufacture includes any process,- (I) incidental or ancillary to the completion of a manufactured product: (II) which is specified in relation to any goods in the section or Ch. Notes of the Schedule to the central Excise Tariff Act, 1985 as amounting to manufacture, AND the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;" (4) THE definition is thus an inclusive definition. The purpose of the definition is to include certain processes and activities within the ambit of the said definition which may not otherwise amount to manufacture, as ordinarily understood. This inclusion is in addition to the normal meaning and context of the expression manufacture. The said expression has been the subject-matter of several decisions of this court to which a brief reference is necessary to bring out the principles enunciated therein. In Union of India v. Delhi Cloth and General Mills the Revenue wanted to levy a duty upon refined oil" which was obtained by the respondent-manufacturer at an intermediate stage of production of vanaspati. The respondent cleansed the oil purchased by him by applying certain processes and thus obtained "refined oil". But the respondent did not apply the process of deodorisation before hydrogenating the refined oil. The case of the Revenue was that even non-deodorised relined groundnut/til oil is "refined oil" as known to the consumers and the commercial community. The respondents case, however, was that the refined oil as known to the consumers and the commercial community is necessarily the deodorised refined oil. After referring to the material produced by both the parties, this court upheld the respondents contention and held that "without deodorisation, the oil is not refined oil as is known to the consumers and the commercial community". This court further held "that the raw oil purchased by the respondent for the purpose of manufacture of vanaspati does not become at any stage refined oil as is known to the consumers and the commercial community". This court further held "that the raw oil purchased by the respondent for the purpose of manufacture of vanaspati does not become at any stage refined oil as is known to the consumers and the commercial community". For this reason, it was held that refined oil obtained by the respondent at stage anterior to hydrogenation is not "vegetable non-essential oil" or by "all sorts" in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power within the meaning of Item 12 of the 1st Schedule to the Act. So far as legal position is concerned, this court stated it in the following words: "EXCISE duty is on the manufacture of goods and not on the sale. Mr Pathak is therefore right in his contention that the fact that the substance produced by them at an intermediate-stage is not put in the market would not make any difference. If from the raw material has been brought into existence a new substance by the application of processes one or more of which are with the aid of power and that substance is the same as "refined oil" as known to the market an excise duly may be leviable under Item 23 (the present Item 12." (5) THE court then dealt with the next argument of the appellant-Union of India that even if it is held that the respondent did not manufacture "refined oil" as known to the market, even so they must be held to manufacture some kind of "non-essential vegetable oil" within the meaning of Item 23. This court rejected the said argument with reference to the meaning of the expressions manufacture and goods, in the following words: "THE word manufacture used as a verb is generally understood to mean as bringing into existence a new substance and does not mean merely to produce some change in a substance, however minor in consequence the change may be. This distinction is well brought about in a passage thus quoted in Permanent Edition of Words and Phrases. Vol. 26, from an American judgment. The passage runs thus: "Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. This distinction is well brought about in a passage thus quoted in Permanent Edition of Words and Phrases. Vol. 26, from an American judgment. The passage runs thus: "Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the 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 court then referred to and dealt with the meaning of expression goods occurring in Section 3 and observed thus: "THESE definitions make it clear that to become goods an article must be something which can ordinarily come to the market to be bought and sold. This consideration of the meaning of the word goods provides strong support for the view that manufacture which is liable to excise duty under the central excises and Salt Act, 1944 must be the bringing into existence . of a new substance known to the market. But, says the learned counsel, look at the definition of "manufacture" in the definition clause of the Act and you will find that "manufacture" is defined thus: "Manufacture" includes any process incidental or ancillary to the completion of a manufactured product. [Section 2(f)]. We are unable to agree with the learned counsel that by inserting this definition of the word manufacture in Section 2(f) the legislature intended to equate processing to manufacture and intended to make mere processing as distinct from manufacture in the same sense of bringing into existence of a new substance known to the market, liable to duty. The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word manufacture has been used to mean a process incidental to the manufacture of the article. The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word manufacture has been used to mean a process incidental to the manufacture of the article. Thus in the very item under which the excise duty is claimed in these cases, we find the words: "in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power." The definition of manufacture as in Section 2(f) puts it beyond any possibility of controversy that if power is used lor any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be applicable: and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available. It is only with tins limited purpose that the legislature, in our opinion, inserted this definition of the word manufacture in the delinition section and not with a view to make the mere processing of goods as liable to excise duty." (6) IN South Bihar Sugar Mills Ltd. v. Union of India, the above interpretation was affirmed. (7) IN Empire Industries Ltd. v. Union of India the question arose whether the process of bleaching, dyeing, printing of grey cloth amounts to manufacture as defined in the Act. It may not be necessary to set out the reasoning in this case inasmuch as the very same question was considered later by a Constitution bench of this court in Ujagar Prints (II) v. Union of india. We will, therefore, refer to the reasoning in Ujagar Prints. The facts in Ujagar Prints were these: the customers supplied the grey fabric to the appellant who carried out operations of bleaching, dyeing, printing, glazing, shrink-proofing etc. against payment of processing charges. The ownership of the cloth rested with the customers who got these processes done to their specifications from the appellant on payment of processing charges. The question was whether the appellant can be said to have undertaken manufacture as defined in the Act. against payment of processing charges. The ownership of the cloth rested with the customers who got these processes done to their specifications from the appellant on payment of processing charges. The question was whether the appellant can be said to have undertaken manufacture as defined in the Act. M.N. Venkatachaliah, J., as the then learned Judge was, dealt with several decisions of this court including those referred to above as well as the decisions rendered by this court under different Sales Tax enactments (including Tungabhadra Industries Ltd. v. CTO) and enunciated the principle in the following words: "THE prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes. The principles are clear. But difficulties arise in their application in individual cases. There might be borderline cases where either conclusion with equal justification be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, we are afraid, results in an oversimplification of both and tends to blur their interdependence in cases such as the present one." (8) THE learned Judge then dealt with argument that if the expression manufacture defined under Section 2(f) of the Act is understood in a broad sense to include processes, which in truth do not amount to manufacture, the definition and the very Act would fall outside Entry 84 of List I of the Seventh Schedule to the Constitution. The learned Judge rejected the argument holding that "at all events, even if the impost on process is not one under Entry 84, List 1. but is an impost on processing distinct from manufacture the levy could yet be supported by Entry 97, List I even without the aid of the wider principle recognised and adopted in Dhillon case". The learned Judge then referred to the principle of the decision in Union of India v. H.S. Dhillon and observed: "SO far as the exclusive competence of the Union Parliament to legislate is concerned all that is necessary is to find out whether the particular topic of legislation is in List II or List III. If it is not. The learned Judge then referred to the principle of the decision in Union of India v. H.S. Dhillon and observed: "SO far as the exclusive competence of the Union Parliament to legislate is concerned all that is necessary is to find out whether the particular topic of legislation is in List II or List III. If it is not. it is not necessary to go any further or search for the field in List I. Union Parliament has exclusive power to legislate upon that topic or field. Of course, it has concurrent power also in respect of the subjects in List III." (9) IN CCE v. Kutty Flush Doors and Furniture. Co. (P) Ltd.. this court observed, after referring to the principle of Delhi Cloth and General Mills and South Bihar Sugar Mills to the following effect: "THIS principle is well settled. This is a question of fact depending upon the relevant material whether as a result of activity, new and different article emerges having a distinct name, character and use." (10) ON the meaning of expression process, the following statement in the decision of this court in CCE v. Rajasthan State Chemical Works" is relevant: "THE natural meaning of the word process is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject-matter in order to transform or reduce it to a certain stage. According to Oxford Dictionary one of the meanings of the word process is a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result. The activity contemplated by the definition is perfectly general requiring only the continuous or quick succession. It is not one of the requisites that the activity should involve some operation on some material in order to (sic effect) its conversion to some particular stage. There is nothing in the natural meaning of the word process to exclude its application to handling. There may be a process which consists only in handling and there may be a process which involves no handling or not merely handling but use or. also use. It may be a process involving the handling of the material and it need not be a process involving the use of material. There may be a process which consists only in handling and there may be a process which involves no handling or not merely handling but use or. also use. It may be a process involving the handling of the material and it need not be a process involving the use of material. The activity may be subordinate but one in relation to the further process of manufacture." (11) THE question in the decision was whether the respondent was entitled to the benefit of a particular exemption notification but that question in turn raised the question what is manufacture and what is process"? The bench (S. Ranganathan, Fathima Beevi and N.D. Ojha, JJ.) expressed the aforesaid opinion. (12) THE decisions aforesaid make it clear that the definition of the expression manufacture under Section 2(f) of the Act is not confined to the natural meaning of the expression manufacture but is an expansive definition. Certain processes, which may not have otherwise amounted to manufacture, are also brought within the purview of and placed within the ambit of the said definition by Parliament. Not only processes which are incidental and ancillary to the completion of manufactured product but also those processes as are specified in relation to any goods in the section or Ch. Notes of the Schedule to the central Excise Tariff Act, 1985 are also brought within the ambit of the definition. As has been repeatedly observed by the court, though the principles enunciated are clear, it is their application that presents difficulties and it does not help to draw "any sharp or intrinsic distinction between processing and manufacture ", "which would only result in an oversimplification of both and tends to blur their interdependence in cases such as the present one" (Ujagar Prints ). It would also be not right, as pointed out in Ujagar Prints to try to restrict the sweep of the definition with reference to Entry 84 List I of the Seventh Schedule to the Constitution. Since the constitutionality of the said definition has been repeatedly upheld with reference to both Entries 84 and 97 of List I (Empire industries and Ujagar Prints), the definition must be understood in terms it is couched. Since the constitutionality of the said definition has been repeatedly upheld with reference to both Entries 84 and 97 of List I (Empire industries and Ujagar Prints), the definition must be understood in terms it is couched. It should also be remembered that the question whether a particular process does or does not amount to manufacture as defined under Section 2(f) is always a question of fact to be determined in the facts of a given case applying the principles enunciated by this court. One of the main tests evolved by this court is whether on account of the processes employed or applied by the assessee, the commodity so obtained is no longer regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes (Ujagar Prints). (13) NOW coming to the facts of the case. before us, it is clear from the perusal of the opinion of the third Member of the tribunal that he has not dealt with the case in a full and proper manner and has disposed of the issue in a cryptic manner. It has, therefore, become necessary to remit the matter for the fresh opinion of the third Member of the tribunal. The third Member shall now hear the parties and render his opinion afresh on the question referred to him. He shall do so within six months from this date. He shall transmit his opinion to this court soon after rendering it. (14) IF the third Member, .Jyoti Balasundaram, who heard the matter is not available, the Chairman of the tribunal shall specify another Member for hearing this matter. 15. List the appeal after receipt of the finding/opinion from the tribunal