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2016 (1) TMI 1055 - CESTAT NEW DELHI

2016 (1) TMI 1055 - CESTAT NEW DELHI - 2015 (325) E.L.T. 768 (Tri. - Del.) - Gas filing activity - Demand on duty - whether the activity undertaken by the appellant amounts to manufacture? - marketability - Held that:- As seen that in the case of Shivam Industries (2012 (12) TMI 341 - CESTAT, NEW DELHI) this Tribunal has observed that the adoption of any other treatment rendered the product marketable to the consumer. Admittedly, in this case the consumers are Vanaspati manufacturers who are ind .....

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amount to manufacture. Consequently, the appellant are not liable to pay duty. - Decided in favour of assessee. - E/2865-2866/2011-EX(DB) and E/52196/2014-EX(DB) - Final Order Nos. A/52666-52668/2015-EX(DB) - Dated:- 11-8-2015 - Shri Ashok Jindal, Member (J) and B. Ravichandran, Member (T) Shri B.L. Narsimhan, Advocate, for the Appellant. Shri M.S. Negi, DR, for the Respondent. ORDER [Order per : Ashok Jindal, Member (J)]. - The appellant is in appeals against the impugned orders confirming the .....

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ess is done by the appellant with the aid of filter, dehydration and compressor. Revenue is of the view that activity undertaken by the appellant amounts to manufacture. Therefore, they are liable to pay duty on gas cylinders. Consequently, various periodical show cause notices were issued to the appellant which was adjudicated and duty was demanded along with interest and equivalent amount of penalty was also imposed. Aggrieved from the said orders, appellant is before us. 3. The ld. Couns .....

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earlier period reported in 1999 (107) E.L.T. 364 (Tri.) has observed that the appellant are receiving the hydrogen gas and they are filling hydrogen gas in cylinders after compressing the same and also observed that the compressed hydrogen gas and other hydrogen gas are the same. Therefore, it was held that no new commodity has come into existence by merely filling of hydrogen gas into the cylinders. In these circumstances, this Tribunal held that activity undertaken by the appellant does not a .....

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ss. He also relied on the decision of Shivam Industries v. CCE, Allahabad - 2012 (281) E.L.T. 598 (Tri.-Del.) and Lupin Laboratories Ltd. v. CCE, Aurangabad - 2002 (139) E.L.T. 366 (Tri.-Mum.) which has been affirmed by the Hon ble Apex Court reported in 2004 (166) E.L.T. A116 (S.C.). 4. On the other hand, ld. AR oppose the contention of the ld. Counsel and submits that as per sub-chapter Note No. 9 of Chapter 28 Labelling or re-labelling of containers and packing from bulk pack to retail p .....

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2011 (271) E.L.T. 321 (S.C.) and Abdos Trading Company Pvt. Ltd. v. CCE, Kolkata - 2013 (290) E.L.T. 467 (Tri.-CCU). 5. Heard the parties. Considered the submissions. 6. In this case before going to frame the issue we are recording the activity undertaken by the appellant which is as under : The appellant is receiving Hydrogen Gas through pipeline. They compress it and fill it into cylinders at required pressure with the help of compressor run with the aid of power and it is known as .....

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. The treatment employed by the appellant is oil filtration, removing moisture by gas by drying by the in-built system of compressing pressure gas into the cylinders. The allegation of the Revenue is that this activity renders the product marketable to the consumer. As the gas received by the appellant through pipeline is not usable or consumable. Therefore, the gas received in pipeline is not marketable to the consumer in the state in which it is received by the appellant. On examining the acti .....

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to natural gas falling under Heading 2711, the process of compression of natural gas (even if it does not involve liquefaction), for the purpose of marketing it as Compressed Natural Gas, for use as a fuel of for any other purpose, shall amount to manufacture . 8. On examining the said Chapter Note 5, in Chapter 27, we find that the process of compressor is also amounts to manufacture. Admittedly, in the case in hand as per Chapter Note 9 of Chapter 28 of the CETA, 1985 the activity of comp .....

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also seen that in the case of Ammonia Supply Company (supra), this Tribunal held that Ammonia gas from bulk packing to smaller container will not amount to manufacturing process. Admittedly, in this case the gas from pipeline into cylinders is a similar activity and same shall not amount to manufacturing process. 11. Now the only issue remain before us is whether the activity undertaken by the appellant renders the product marketable to the consumer or not. The said issue has been examined .....

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read with Chapter Note 4 of Chapter 27 of the Central Excise Tariff. 7. Under Section 2(f)(ii) the manufacture includes any process which is specified in relation to any goods in section or Chapter notes of the 1st Schedule to the Central Excise Tariff Act, 1985 as amounting to manufacture. Chapter Note 4 of the Chapter 27 states that in relation to lubricating oil and lubricating preparations of Heading 2710, labelling or re-labelling of containers or repacking from bulk packs to retail pa .....

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