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TMI Blog2013 (11) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... e inputs for manufactures of Caustic Soda is Mercury. For manufacture of Caustic Soda Brine solution is subjected to electrolysis in an electrolytic cell with Mercury cathode. Sodium collected at cathode dissolves in Mercury to form Sodium amalgam. The chlorine is liberated at anode. The sodium amalgam formed is transferred to second Mercury cell when it is treated with water, as a result of which Caustic Soda and Hydrogen are formed and Mercury is re-generated in the following reaction:- 2NaHg + 2HO 2NaOH + H + 2Hg The re-generated Mercury is then transferred to first Mercury Cell for its re-used in the electrolysis of brine solution. 1.2 Since the respondents Caustic Soda Plant closed down in 1997, the re-generated Mercury lying with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed before Commissioner (Appeals) against the Joint Commissioners order. The Commissioner (Appeals) vide order-in-appeal dt.30.08.2005 upheld the decision of the Joint Commissioner and dismissed the Review appeal vide order-in-appeal dt.30.08.2005. Against the above order of the Commissioner (appeals), this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Sh. V.P.Batra, the learned departmental representative, assailed the Commissioners order by reiterating the grounds of appeal and pleaded that the recovered Mercury is an excisable product, chargeable to duty under Chapter 28 and that in any case, the respondent's activity of packing the recovered Mercury into 30Kg Cans would amount to manufacture in terms of Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to render the product marketable to the consumer, shall amount to manufacture. 7. The Department's contention is the packing of loose re-generated Mercury into 30 Kg Cans for its sale amounts to re-packing from bulk pack to retail pack and hence the provisions of Chapter note 10 to Chapter 28 are attracted. In this regard we find that the Tribunal in the cases of M/s. Vadilal Gases Limited Vs. Commissioner of Central Excise & Custom, Vadodara-II reported in 2007 (218) ELT-77 (Tri. -Ahmd.), M/s. Ammonia Supply Co. Vs. CCE New Delhi, reported in 2001 (131) ELT- 626 (Tri.) & Commissioner of Central Excise, Chennai Vs. Sigma Scientific Co. Ltd. reported in 2009(233) ELT-371 (Tri Chennai) has held that packing of gas in smaller containers fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter Notes in Chapter 29, 34, 35 & 38 of the tariff has not been considered. 8. In any case it is seen that the Show Cause Notice has been issued after expiry of normal limitation period of one year from the relevant date and same would not survive unless the Department proves that the respondents had deliberately suppressed the relevant facts from the Department with intent to evade the duty. In this regard we find that the respondent is a Public Sector Undertaking wholly owned by the Government of India and in our view it would be absurd to accuse a wholly Government owned company of non-payment of excise duty with intent to evade the tax. In the circumstances of the case, in our view, it would not be correct to allege that the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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