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2021 (8) TMI 240 - AT - Central ExciseProcess amounting to manufacture or not - compression of carbondioxide received through pipelines and the subsequent filling into cylinders - Chapter Note 9 of Chapter 28 of the Central Excise Tariff Act 1985 - HELD THAT:- It would now be necessary to examine the main contention raised by the learned counsel for the Appellant that since the order dated 21.07.2016 passed by the Principal Commissioner for the subsequent period attained finality, as no appeal was filed by the Department to assail the said order, the Department cannot now agitate that the activity undertaken by the appellant would amount to manufacture. A Division Bench of the Tribunal in ROSMERTA TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CE & ST, LTU DELHI [2019 (11) TMI 1573 - CESTAT CHANDIGARH], had an occasion to examine this contention. It was held that when for a subsequent period in the own case of the appellant it was held that service tax cannot be levied, which order had attained finality, the Department cannot be permitted to take a stand that service tax is leviable. The decision of the Supreme Court in COMMR. OF C. EX., MUMBAI VERSUS BOC (I) LTD. [2008 (4) TMI 46 - SUPREME COURT], where it was held that mere labeling or relabeling in the absence of any activity of repacking from bulk packs to retail packs would not render the product marketable directly to the consumer, would not be applicable in view of the subsequent decision of the Supreme Court in AIR LIQUIDE NORTH INDIA (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2011 (8) TMI 93 - SUPREME COURT] and that the process undertaken by the appellant would amount to manufacture in view of the third requirement contained in Chapter Note 9 of Chapter 28 of the Tariff Act. Appeal allowed - decided in favor of appellant.
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