TMI Blog2011 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ring a commercially different type of gas or a new type of commodity which would suit a particular purpose - No duty was ever paid by the appellant on the Helium sold by it after giving some treatment so as to make it a different commercial product - Decided against the assessee - 43 of 2005 - - - Dated:- 30-8-2011 - Mukundakam Sharma and Anil R. Dave, JJ JUDGEMENT Anil R. Dave, J:- 1. This appeal has been filed against the Judgment and Order dated 31.8.2004 passed in Final Order No 595/2004-NB(C) by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/247/2004-NB(C), whereby the Tribunal has allowed the appeal filed by the Department and reversed the findings of the Commissioner(Appeals). 2. The issue which falls for consideration in the present appeal is whether the treatment given or the process undertaken by the appellant to Helium gas purchased by it from the open market would amount to manufacture, rendering the goods liable to duty under Chapter Note 10 of Chapter 28 of the Central Excise Tariff Act, 1985 (hereinafter referred to as The Act'). Chapter Note 10 of Chapter 28 of The Act, In Relation To manufacture', reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had rendered the product marketable. In the circumstances, the process of testing cannot be said to be a manufacturing process, rendering the product marketable. It was also submitted that the crucial requirement for the application of the last portion of Chapter Note 10 of Chapter 28 of the Act is that by adoption of some treatment, the product should become marketable to the consumer. According to the learned counsel, the product, i.e. Helium gas was already in a marketable state when it was purchased by the appellant and, therefore, it cannot be said that the appellant made it marketable. To substantiate his claim, the learned counsel for the appellant relied on the cases of CCE v. LUPIN LABORATORIES 2004 (166) A116 (SC) and LAKME LEVER LTD. v. CCE 2001 (127) ELT 790 (T). 6. The learned counsel for the appellant brought to our attention a decision of this Court rendered in the case of BOC (I) Ltd. v. CCE 2003 (160) ELT 864 to substantiate his claim that the issuance of certificate along with the cylinder at the time of sale does not amount to re-labelling. He also contended that as there was no suppression of facts of any sort on the part of the appellant, extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail with regard to the process because, according to him, that process was a trade secret and he would not like to reveal the same. Thus, the respondent or his subordinate authorities were not informed as to what was being done by the appellant to Helium gas purchased or what treatment was given to the said gas before selling the same to different customers at different rates with different certifications in different containers/cylinders. It is also pertinent to note that the gas which was purchased at the rate of about Rs.520/- per Cum. was sold by the appellant at three different rates namely Rs.700/-, Rs.826/- and Rs.1000/- per Cum. and thereby the appellant used to get 40% to 60% profit. 12. From the above undisputed facts, it is clear that the gas cylinders were not sold as such but they were sold only after certain tests or processes as specified by the customers of the appellant. It is also clear that only after the analysis and tests, it could be ascertained as to whom the gas was to be supplied and at what rate. The various tests resulted into categorization of the gas into different grades namely, Helium label 4, high purity Helium and Helium of technical grade. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant and the rate at which it was sold to its customers was substantially different. 17. In the circumstances, it cannot be said that no treatment was given to the gas purchased by the appellant. For the said reasons, it cannot be said that the appellant was not carrying out any manufacturing activity within the meaning of Chapter Note 10 of Chapter 28 of the Act. 18. It is also pertinent to elucidate on the phrase "marketable to the consumer". The word "consumer" in this clause refers to the person who purchases the product for his consumption, as distinct from a purchaser who trades in it. The marketability of the product to "the purchaser trading in it" is distinguishable from the marketability of the product to "the purchaser purchasing the same for final consumption" as in the latter case, the person purchases the product for his own consumption and in that case, he expects the product to be suitable for his own purpose and the consumer might purchase a product having marketability, which it did not possess earlier. 19. Therefore, the phrase "marketable to the consumer" would naturally mean the marketability of the product to "the person who purchases t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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