TMI Blog2018 (5) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... . Repacking of gas by the appellant does not amount to manufacture as marketable - demand not sustainable - appeal allowed - decided in favor of appellant. - Appeal No. E/2363/2011-DB - A/62194/2018-EX[DB] - Dated:- 20-3-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri S. Sunil, Advocate for the Appellant(s) Shri Atul Handa, A.R. for the Respondent(s) Per : Ashok Jindal The appellant is in appeal against the impugned order demanding duty of ₹ 3,17,82,267/- along with interest and equivalent amount of penalty. 2. The facts of the case are that the appellant is engaged in the marketing of Hydrogen Gas Cylinders. The unit of the appellant is adjacent to the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h compressor fill the compressed Hydrogen in cylinders market the Hydrogen Gas. We came into operation in the July -2000. Other similar units attached to M/s. Punjab Alkalies Chemicals Limited Modi Alkalies Chemical Limited was also registered as manufacturers under Central Excise Act. We have now been informed by units attached M/s. Punjab Alkalies Chemical Limited that they are not registered under Central Excise as manufacturer but has taken a trading licence for trading in hydrogen as compressing and bottling of Hydrogen does not fall under the category of manufacture. They have cited a CEGAT order relating to M/s. Goyal M.G. Gases Limited vs. Commissioner - 1999 (107) ELT 364 (Tribunal). Further in a CEGAT order under case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an early date and take on our activity as trader in Hydrogen. Please confirm. 4. In response to the above referred letter dated 23.11.2006 of the Noticee, the Superintendent , Central Excise, Range II, Rajpura vide letter C. No. CE2O/surrender of RC/Surya/R-II/81/06/1792 dated 23.11.2006 wrote to the noticee as under: Section Note 9 of Chapter 28 states that In relation to products of this Chapter, labelling or relabeling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture. You are requested to confirm whether you fall under the purview of the above mentioned Section Note. 5. With reference to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 compressed hydrogen gas in cylinders. The compressors installed in the premises compresses the gas at different pressure and finally at the pressure 140kg/cm for filing into cylinders each compressor is oil lubricated. In order to avoid passage of oil into gas the compressors is in built system of oil filtration. The gas received by the appellant through pipeline has some amount of moisture and in order to remove the moisture from the gas the compressor has in built system of drying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activity of compressor does not amount to manufacture. Now the short issue before us whether the activity undertaken by the appellant rendered the product marketable to the consumer or not. 9 . The main thrust of the ld. AR is that the appellant is engaged in the activity of packing/repacking from bulk to smaller packs. In fact, that is not the case of the department as per the show cause notice. Therefore, the case laws relied upon by the ld. AR are not relevant to the facts of this case. 10 . We have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketable to consumer would not cover an industrial user or manufacturer who process the transformer oil/lubricants for his own industrial use. In this case, the appellant had subjected the transformer oil purchased by them to the process of filtration and heating to make it suitable for their own industrial use i.e. for repair of the transformers. The process undertaken by the appellant thus, does not amount to manufacture and as such the impugned orders are not sustainable. The same are set aside. The appeals are allowed. 12 . We have seen that in the case of Shivam Industries (supra) this Tribunal has observed that the adoption of any other treatment rendered the product marketable to the consumer. Admittedly, in this case the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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