TMI Blog1999 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... m through pipelines from Grasim Industries. A question has arisen in the aforesaid facts and circumstances whether another duty liability on compressed hydrogen gas in cylinders devolves on the appellants herein or not. 2. Learned Advocate, Shri Shiv Dass for the appellants submits that no new commodity has arisen as a result of process undertaken by the appellants. The process undertaken can be briefly summed as compressing, drawing and filling of the hydrogen gas in cylinders. The various purposes of the aforesaid three processes before their clearance from the factory is set out in their reply dated April 1997 to the show cause notice :- (a) Compressing The act of compressing of the hydrogen gas is undertaken only for the sole pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cylinders that are required for his manufacturing activity. Learned Advocate further submits that what they obtained previously from Grasim Industries was hydrogen gas and what they ultimately sold was also hydrogen gas; merely the form of delivery has been changed i.e. hydrogen gas filled in cylinders. He also submits that TH 2804 and its sub-heading read as follows :- 28.04 Hydrogen, rare gases and other non-metals. Oxygen (including liquified or solidified gas) - 2804.11 Medicinal grade - 2804.19 Other - 2804.90 Other" - 2.1Learned Advocate submits that there is no sub-heading regarding compressed hydrogen gas. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored and transported. Thus it has been held that the process of drying and chilling/liquidification of gas is necessary so as to store in cylinder are necessary for holding that the process of manufacture took place after Hydrogen was received at the site. In the instant case also the noticee was carrying out the process of drying and thereafter compressing the gas so as to store it in cylinders. Thus relying on the judgment of Hon ble, it can be held that the process carried out by the Noticee amounts to process of manufacture and the noticee is liable to pay duty. The noticee s claim that what he was receiving from M/s. Grasim was Hydrogen and what he was selling was also Hydrogen is of non-consequence as the process carried out by the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction requiring the assessee to set out in writing what it does to obtain the article. Too often, as our experience in the Court and in the High Courts, before the Tribunal was established, shows, lack of evidence has led to the failure of the case of the Excise Authorities and, consequently, to the loss of revenue to the State. 7. Failure to lay the requisite evidence cannot be made up by reference to authoritative publications unless the Excise Authorities inform the assessee that they propose to rely on the same before the adjudicating authority it is then open to the assessee to establish that it does not obtain the article by the means referred to in the publication or indeed, that the publication is not authoritative. In the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not correct to say that hydrogen gas in pipeline can be commercially used. The only commercial use, according to him, is by filling the gas into cylinders and then only it is commercially used. He further submits that it is not merely compressing of the gas but the assessee is also undertaking drying of the gas. Therefore, it is a new commodity which came into existence from impure hydrogen gas to pure commercial gas. Regarding the affidavit filed by the Manager, Shri Pankaj Mittal, Shri Sanjeev Srivastava, learned JDR submits that hydrogenation can take place only at 405 kPa which in layman s language can be put as more than 4 atomospheric pressure. For this proposition, learned JDR relies on Kirk-Othmers Encyclopedia of Chemica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 310 (Mad.) (3) Henna Export Corporation v. C.C.E. - 1993 (67) E.L.T. 907 (Para 5) (4) Jupiter Engravers v. U.O.I. - 1993 (68) E.L.T. 60 (Bom.) and (5) Hawkins Cookers Ltd. v. C.C.E., Chandigarh - 1997 (96) E.L.T. 507 (Paras 3 4). Learned JDR further submits that in view of the aforesaid technical literature relied upon by him, the matter if considered may be remanded to the adjudicating authority to give a finding whether the affidavit of Shri Pankaj Mittal is acceptable or not. 4. We have carefully considered the pleas advanced from both sides. We observe that the appellants herein received hydrogen gas. They cleared hydrogen gas in cylinders after compressing the same. We also observe that the appellants in the course of reply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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