TMI Blog2017 (1) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Tribunal in Goyal Gases (P) Ltd. vs. CCE, Meerut [1999 (7) TMI 243 - CEGAT, NEW DELHI] and it was held that the filling of mixture of the said gases in cylinder does not amount to manufacture for purposes of Section 2(f) of the Central Excise Act, the consequential questions relating to excisability, duty demand and penalty do not require separate consideration. Appeal dismissed - decided against appellant. - Civil Appeal No.1983-1987 of 2008 - - - Dated:- 12-1-2017 - MR. RANJAN GOGOI AND MR. ASHOK BHUSHAN, JJ. For the Appellant: Mr. A.K. Panda, Sr. Adv., Ms. Alka Agrawal, Adv., Ms. Sunita Rani Singh, Adv., Mr. B. Krishna Prasad,Adv. For the Respondent: Mr. V. Lakshmikumaran, Adv., Mr. Aditya Bhattacharya, Adv., Mr. Victor Das, Adv., Mr. Anandh K, Adv., Mr. Yogendra Aldak, Adv., Mr. M. P. Devanath,Adv., Mr. Karan Sachdev, Adv. ORDER 1. The adjudication of a show cause notice under Section 11A of the Central Excises and Salt Act, 1944 by the Commissioner, which was adverse to the assessee, was interdicted by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench (hereinafter referred to as the Tribunal ) by the impugned order on a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. VCL. Before filling the gases, the cylinders are cleaned for removal of impurities like moisture, oxygen, carbon dioxide, etc., so that the gases filled in the cylinders are as much free of the impurities of oxygen, moisture, carbon dioxide etc., as possible. The gases according to the level of purity are graded as VCL I Nitrogen, VCL I Argon, VCL II Nitrogen, VCL II Argon, UHP Argon, etc., - the UHP grade being the purest. Besides pure Argon and Nitrogen, M/s. VCL also make mixtures of gases i.e., Argon with Carbon Dioxide, Argon with Oxygen, Argon with Nitrogen, Nitrogen with Carbon Dioxide, Nitrogen with Oxygen, etc., in which gases are mixed in a fixed proportion and the same are also packed in retail cylinders of 6 or 7 cubic metres capacity. After packing of the Nitrogen, Argon, and gas mixtures in retail cylinders, the same are affixed with a label mentioning the name of the product, purity grade, the level of impurities, batch no. and cylinder no. The labels also bear the name of the marketing company M/s. Vadilal Chemicals Ltd. (M/s. VCL), a sister company, as well as the monogram of Vadilal group. The labels being affixed on the cylinders. 7. Insofar as the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply Company (supra) and the contents of the Circular dated 08.10.1997, we are of the view, that the conclusion of the learned Tribunal, as above, does not suffer from any infirmity which would require our interference. 11. This would bring the Court to a consideration of the second limb of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act, namely, deployment of any other treatment to render a product marketable. 12. From the manufacturing activity undertaken by the assessee, as found by the learned Commissioner himself, and as extracted above, the assessee apart from packing pure Argon and Nitrogen in smaller cylinders is also engaged in the activity of mixing of inert gases (like argon, nitrogen, helium etc.) with other gases like oxygen, nitrogen, carbon dioxide and making available such combination to the consumers in smaller cylinders. Whether such mixing of the gases in question amount to manufacture has been gone into by the learned Tribunal in Goyal Gases (P) Ltd. vs. CCE, Meerut 2000 (115) ELT 467 (Tribunal). Paragraph 11 of the report in Goyal Gases (P) Ltd. (supra) being relevant may be extracted below :- Appellants M/s. Goyal Gases (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioner's ipse dixit carries the matter no further. 14. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, nitrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the appellant was selling the gas. Therefore, in our opinion, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the appellant, the customers of the appellant would not have been purchasing helium from the appellant at a price 40% to 60% above the price at which the appellant was purchasing. 17. In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration. 18. For the reasons aforementioned, the appeals have to fail and the order of the learned Tribunal has to be affirmed, which we hereby do. Accordingly, the appeals are dismissed. The order of the Appellate Tribunal having been affirmed, we do not consider it necessary to decide any of the other issues decided by the learned adjudicating authority, as i ..... 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