TMI Blog2001 (1) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... Oxide Plant. Duty was sought to be Charged on such oxygen. It appears that the assessee had filed writ petition in the Delhi High Court in which the marketability also was agitated. The Hon ble Delhi High Court in disposing of the writ petition directed the petitioner to raise the issue of marketability before the appropriate authorities. This order was dated 1-2-1994 and the certified copy was issued on 8-2-1994. Under cover of a letter dated 7-2-1994 the assessees sought refund of a sum of Rs. 3,45,44,502/- paid as duty on such oxygen captively consumed during the period 1-12-1998 to 31-8-1999. The refund was claimed on the ground that such oxygen was not a marketable commodity and therefore not dutiable. Show cause notice dated 20-5-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In liquid form 2804.90 - Other 3. The entries define oxygen as covering thereunder solidified form and liquid as well as gases in gaseous form. The definition in the earlier Tariff did not distinguish the gas according to the mode of supply thereof. The latter Tariff contained a separate sub-heading based on the format i.e., a liquid form in cylinders and as supplied through pipeline. Shri Shroff submitted that for coverage of the entry under sub-heading 2804.12 to be attracted it was necessary for the contents of the pipeline to be supplied to another person. He submitted that in the case where pipeline carries oxygen inside the manufacturer s factory, the coverage of the sub-heading did not attract. We do not find merit in this pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketable. In the show cause notice, it was claimed that the marketability was prima facie not in doubt because the oxygen had been utilised by the assessees themselves. The language of the Commissioner (Appeals) in dealing with the issue was as follows : - One fact that came up for consideration at the time of the hearing was that oxygen was being actually supplied through pipeline ..... She had thereafter cited the two suppliers. The language would indicate that the fact was brought out during the discussions at the time of the personal hearing. We have seen the letter written by the assessee subsequent to the hearing in which no mention was made of the mention made by the Commissioner (Appeals) of the two instances. In this situati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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