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TMI Blog2018 (11) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to manufacture for the purpose of levy of Central Excise duty. Table 1 gives the details of appeal: S No Appeal No Finished Products Inputs Description CETH Description CETH 1 E/1901/2006 Maharastra Aldehydes & Chemicals Ltd Vs Commissioner Central Excise Raigad Hexane Fraction for ChromotographyLic hrosolv 2710.13 Hexane fraction from Petroleum Products 2710.12 Petroleum Benzene 600-800 CGR 2710.90 Hexane (Petroleum Benzene or Petroleum Eher) 2710.12 2 E/155/2008 Bharat Dye Chem Industries Vs CCE Belapur Various Grades of Hexane LR, AR, HPLC, SG 2710.13 Hexane 2710.12 Various Grades of Petroleum Ether (Benzine) 2710.13 Petroleum Ether 2901.13 3 E/894/2009 CCE Belapur Vs Sunbel Alloys Company of India Ltd Hexane for ChromotographyLic hrosolv 27101112 Hexane from petroleum products 27101980 Petroleum Benzene 600-800 CGR 27101113 Petroleum Benzine 60-800C FS 27101980 4 E/1475/2010 Reshma Organics Pvt Ltd Vs CCE Belapur Various Grades of Hexane LR, AR, HPLC, SG 27101113 (2710.13) Ordinary Grade Hexane 2710.12 Various Grades of Petroleum Ether 27101113 (2710.13) Petroleum Ether 2901.10 5 E/1476/2010 Ranbaxy Fine Chemicals Ltd Vs CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmity. The appellants claim to be carrying on job work for E.Merck Specialties (P) Ltd. The principals of the appellants (E.Merck) faced identical allegations and were proceeded against for having carried on manufacturing activity in their premises. The product or goods in relation to which the allegations are made are identical. The Tribunal upheld the arguments of E.Merck and allowed its Appeal. That order was relied upon by the appellants in the proceedings against them. They succeeded before the Commissioner. The Tribunal does not make any reference to all this and does not deem it necessary to consider the arguments based on its earlier orders. These orders were stated to be final. Yet, the Tribunal omits to consider them. We are not impressed by the argument of Mr. Bhate that though the assessee cited before the Tribunal the decision in its own case or rather in the case of M/s. Merk Specialities Pvt. Ltd. or M/s. E. Merk (i) Ltd., the judgment of this Court in the case of Mercedez Benz (supra) was not brought to the notice of the Tribunal. It is surprising that the Tribunal has to be shown on this elementary or basic point any judgment as it is its bounden duty in law to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Members from time to time. Whatever may be the cause, the outcome is rendering decisions which leave everything incomplete. Such unsatisfactory state of affairs need to be now brought to the notice of all concerned including the appointing authorities. 20. In the light of the above, we are required to quash and set aside both orders of the Tribunal. The Appeal succeeds. The order passed by the Tribunal on 28th March, 2014 and 12th September, 2014 both are quashed and set aside. The Revenue's appeal now shall be reheard by the Tribunal on merits and in accordance with law uninfluenced by its earlier conclusions. 21. The Tribunal must render a decision after dealing with all the contentions which have been raised by the parties. It should permit the appellants to rely upon the earlier adjudication and also bring to its notice the factual matrix involved therein. It must also allow the assessee an opportunity to rely upon the legal provisions and the judgments relevant to the same. Equally, such an opportunity must be given to the Revenue and if it desires distinguishing the earlier adjudication in the case of M/s. E. Merk (i) Ltd. on facts or on law, the requisite material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess undertaken was a purification of the products received and such purity levels were required if the goods were to be used for chromatography or cleaning/ degreasing in laboratory applications. It is therefore quiet evident that the process undertaken do not give rise to any different products with different character, identity or marketability, was merely just a simple purification of the materials received. The point regarding the change of classification as raised by department does not hold goods as there is no change in material characteristics and specifications. Hexane remains Hexane and Petroleum Benzene remains Petroleum Benzene. The change is only in the purity of the material." e. On perusal of the process undertaken by Merck, it is clear that in their case also the process undertaken were like treatment with acid, washing with water etc. After consideration of the above processes, adjudicating Assistant Commissioner passed order in original dated 7/10.02.2000 holding that processes undertaken do not amount to manufacture. This order of Assistant Commissioner has acquired finality as it has not been challenged. f. Department claim is not that the processes undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al properties and chemical properties of the goods before and after purification remain the same and hence the process undertaken do not amount to manufacture. It is also a settled law that classification follows manufacture and mere existence of tariff entry would not mean that the activity would amount to manufacture. i. Moti Laminates Vs CCE [1995 (76) ELT 241 (SC)] ii. CCE Vs Aldee Corporation [2005 (188) ELT 241 (SC)] iii. CCE Vs Markfed Vanaspati [2003 (1530 elt 491 (SC)] iv. Prabhat Sound Studios Vs Addl CCE [1996 (88) ELT 635 (SC)] l. Purified versions can also be used for the purposes for which Hexane and Petroleum Ether received from Merck can be used. m. Department has in the Notice not alleged that the activity of repacking the goods would amount to manufacture in terms of Note 4 to Chapter 27. n. Value addition is irrelevant for determining, whether processes undertaken amount to manufacture- a) Satnam Overseas Ltd vs CCE [2015 (318) ELT 538 (SC)] b) Maruti Suzuki India Ltd. vs CCE [2015 (318) ELT 353 (SC)] c) CCE vs Technoweld Industries [2003 (155) ELT 209 (SC)] d) Aero Pack Products vs CCE [2002 (142) ELT 577 (SC)] affirmed in {2003 (238) ELT 385 (SC)] e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71) ELT 321 (SC)] 4.1 We have considered the submissions made on the behalf of party and also on behalf of revenue. The matter in case of Sunbel Alloys Co. Of India Ltd, has been remanded back by Hon'ble Bombay High Court as stated in para 2.3, supra. At the outset we would mention that both revenue and party's to appeals agree that issues involved in all the appeals are same and identical and these can be taken for decision together. 4.2 The party's have challenged the appeal filed by the revenue basically on the ground that the decision of tribunal in case of CCE Bombay Vs E.Merk (I) Ltd [Final Order No 995/98-C dated 12.10.1998 in Appeal No E/2617/94-C of 1994] has decided the issue of manufacture in their favour, and hence following the said order appeal of revenue needs to be dismissed. For ease of reference the relevant excerpts from the decision of Commissioner (Appeal) and that of the order of Tribunal are reproduced below: Commissioner (Appeal), [Order in Appeal NoPCJ- 536/BOM-III/94 dated 26/9/94]- "4 I have considered the submissions. This case is very similar to the facts in the case of S D Fine Chemicals P Ltd Vs Collector decided by the Tribunal as cited by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and reject the appeal." 3.2 From the above decision of the tribunal in the case of E Merck referred above, it is quite evident, that the appeal before the tribunal was singly on the ground that the department had preferred an appeal before the Apex Court in case of S D Fine Chemicals. By the time the matter was taken up for disposal, the appeal filed by the department in the case of S D Fine Chemicals had been dismissed by the Apex Court. Accordingly tribunal found that the ground on which appeal has been filed was no more, accordingly the appeal filed by the department has been dismissed. Thus it is seen that there was no consideration of any other issue, except the appeal filed by the revenue before the Apex Court in case of S D Fine Chemicals. Since the said appeal in Supreme Court had been dismissed, tribunal rightly dismissed the appeal filed by the revenue. 3.3 Now the real question is whether the order of the tribunal in case of E Merck referred above, would be binding on the party's and would be a binding precedent for all the times to come, even if it can be shown that by applying the principles laid down by the Apex Court in the case of S D Fine Chemicals itself, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 (91) ELT 610 (T) and after transmission of reconsidered view, the appeal filed by the revenue was dismissed by the Apex Court. Since the appeal filed by the revenue in case of S D Fine Chemicals was dismissed, tribunal dismissed the appeal filed by revenue in case of E Merck. We are not going into the issue of dismissal of appeal by the tribunal in case of E Merck, but would point out that while in case of S D Fine Chemicals, third Member, had examined the issue in light of the observations made by the Apex Court in [1995 (3) SCR 84], no such examination has been done by any authority while deciding the case of E Merck. In view of the decision of Apex Court in case of Shree Baidyanath Ayurved Bhawan [2009 (237) ELT 225 (SC)] holding as follows the matter needs to be reconsidered. "45. Before we part with the case, we may address to the plea of res judicata raised by the learned Senior Counsel for the Department. Mr. K. Radhakrishnan pressed into service few legal maxims in this regard. It is true that maxim Nemo debet bis vexari pro una et eadem causa is founded on principle of private justice as it states that no man ought to be twice put to trouble if it appear to the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on a coordinate Bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a Bench of superior strength or in some cases to a Bench of superior jurisdiction. A decision can be set aside in the same lis on a prayer for review or an application for recall or under Article 32 in the peculiar circumstances mentioned in Hurra v. Hurra [2002 (4) SCC 388]. As we have said, overruling of a decision takes place in a subsequent lis where the precedential value of the decision is called in question. No one can dispute that in our judicial system it is open to a court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam. The decision in State of U.P. v. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends to blur their interdependence in cases such as the present one" (Ujagar Prints). It would also be not right, as pointed out in Ujagar Prints to try to restrict the sweep of the definition with reference to Entry 84 List-I of the seventh Schedule to the Constitution. Since the constitutionality of the said definition has been repeatedly upheld with reference to both Entries 84 and 97 of List-I (Empire Industries and Ujagar Prints), the definition must be understood in terms it is couched. It should also be remembered that the question whether a particular process does or does not amount to 'manufacture' as defined under Section 2(f) is always a question of fact to be determined in the facts of a given case applying the principles enunciated by this Court. One of the main tests envolved by this Court is whether on account of the processes employed or applied by the assessee, the commodity so obtained is no longer regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes (Ujagar Prints)." 3.7 The Supreme Court in the case of Union of India v. BabubhaiNylchand Mehta 1991 (51) ELT 182 (SC) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company in its factory amounts to manufacture, new products come into being. It does not remain an ordinary kraft paper and as such it is liable to excise duty of 40% ad valorem as provided under Central Excise Tariff Item No. 17(2). In the above Laminated Packings case, it was clearly held by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct separate and different goods known in the market as such from the kraft paper." 3.8 The third member in case of S D Fine Chemical, has in her order reported in 1997 (91) ELT 610 (T) has held as follows:- "15.3 The Hon'ble Supreme Court in the case of Dy. Commercial Superintendent Sales Tax v. Pio Food Packers -1980 (6) E.L.T. 343 (SC) laid down that manufacture is the end result of one or more processes through which the original commodity is made to pass and although the nature and extent of processing may vary from one case to another, yet it is when the change or a series of changes take the commodity to the point where commercially that article is recognised as new and distinct article, that a manufacture can be said to have taken place. 15.4 In the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as a commercially new and distinct commodity from the ore of different specifications blended together. The nature and extent of processing may vary from case to case; in one case the processing may be slight and in another it may be extensive, but with each process suffered the commodity would experience a change. Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity. The nature and extent of the change is not material". 16. The test of manufacture laid down by the Hon'ble Supreme Court in the case of Union of India and Ors. v. Delhi Cloth and General Mills Co Ltd. and Ors. - 1977 (1) E.L.T. (J 199) is that a new and different article must emerge having distinctive name, character or use. The same test was reiterated in the case of South Bihar Sugar Mills v. Union of India -1978 (2) E.L.T. (J 336) wherein the Supreme Court affirmed that the word 'manufacture' implies a change but every change in the raw material is not manufacture and there must be such transformation that a new and different article must emerge having a distinct name, character or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as the original commodity. In my view in the instant case this test has not been satisfied as the chemicals prior to the two processes concerned herein continue to remain the same after being subjected to the processes, admittedly with only a change in increase in purity. The commodity retains its identity substantially through the processing stage. Therefore, it cannot be said to have been manufactured." 3.9 In case of CST Vs IOC [(1978) 41 STC 471 (BOM)], Bombay High Court has held - "2. The respondent is a dealer registered under the said Act. By an application dated 14th October, 1971, made under section 52(1) of the said Act, to the Commissioner of Sales Tax, the respondent sought determination of the correct rate of tax payable on the sale of Methimix effected under a certain invoice, a copy of which was annexed to the application. The respondent applied for determination of the question as to whether mixing of distilled water with methonol amounted to manufacture of goods under section 2(17) of the said Act. The respondent further applied for the determination of the correct rate of tax payable on the sale of Methimix effected under the aforesaid invoice. The res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed." 4. We have no doubt that in view of the said extended definition, the mixing of methonol with distilled water in exact proportions and subjecting the mixture to laboratory test as has been done in the present case by the respondent would be covered in the description of the term "manufacture", given in clause (17) of section 2 of the said Act. For example, mixing in such a manner would certainly amount to making the mixture or producing the mixture or treating methonol with water or adapting methonol for the use in question. The question which has to be really considered is whether such activity of mixing methonol with distilled water results in a commercially different commodity. As we have already held in Commissioner of Sales Tax v. Dunken Coffee Manufacturing Company ([1975] 35 S.T.C. 493), for an activity to amount to manufacture, it must result in a different commercial article or commodity. It must not be the commodity which is commercially the same as it was before the activity was applied to it. We have pointed out in that decision that the definition of the term "manufacture" in clause (17) of section 2 of the said Act is very wide and includes within its scope ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Atul Glass Industries (P) Ltd. v. Collector of Central Excise (1986) 63 STC 322 (SC), the Apex Court at page 327 held as under: "The test commonly applied to such cases is : How is the product identified by the class or section of people dealing with or using the product? That is a test which is attracted whenever the statute does not contain any definition. Porritts& Spencer (Asia) Ltd. v. State of Haryana (1978) 42 STC 433(SC). It is generally by its functional character that a product is so identified. In Commissioner of Sales Tax, U.P. v. Macneill& Barry Ltd. (1986) 61 STC 76 (SC) : (1985) 2 SCALE 1093 (SC), this court expressed the view that ammonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word used in common parlance. On the same basis, the Orissa High Court held in State of Orissa v. Gestetner Duplicators (P) Ltd. (1974) 33 STC 333 (Ori) that stencil paper could not be classified as paper for the purposes of the Orissa Sales Tax Act. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL on job work basis; * M/s. RFCL were supplying all raw materials and packing materials to their factory gate; * depending on their requirement, the goods were manufactured from Hexane fraction of petroleum products which was first washed with sulphuric acid (3-4 times) and then washed with water till the same was rendered neutral to pH; * the said material was then rectified in the rectification column; the fraction below 60oC to 65oC was collected as Hexane's of HPCL and then the same was repacked in the consumer packs; * same process was being carried out for the various grades of Petroleum Ether 60-80; the products being distilled were for higher and refined grades in the purer form than commercial grade; * the products were repacked in the consumer packs of 500 ml, 1 litre, 2.5 litre, 25 litre etc.; the products manufactured by them fell under CETSH 2710.12 and 2710.13; * they were treating raw material Hexane-HPCL falling under CETSH 2710.13 and petroleum Ether 40-60 and 60-80 also falling under 2710.13 with acid followed by water washing and distillation and thereafter repacking the same into consumer packs; the resultant products were exclusively used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and impurity profile of substances; it was used as a mobile phase in HPCL instrument." 4.3 Sunbel Alloys Company of India Ltd had filed an affidavit giving the details of processes undertaken by them along with the nature and character of the finished goods and raw material before the Bombay High Court. Said affidavit which contains all the details about the processes the products is reproduced below: 4.4 From the facts as stated by the employees of the party's and also as per the affidavit filed by appellants, the input raw material received by them is "Commercial Grade Bulk Hexane and Petroleum Ether (also known as benzine). As per the para 7, of the affidavit as result of processes undertaken the certain properties of the Commercial grade Hexane and Petroleum Ether are modified, the finished product meets the requirement of ultimate use.. Also as per the para 5, of the affidavit, the specifications, of the raw material as received and the finished goods supplied by them are also not the same. Appellants have argued vis a vis two critical parameters to state that there is no change in the raw material received by them and the finished products supplied by them. 10.4. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an alkane hydrocarbon with chemical formula CH3 (CH2)4CH3(=C6 H14), whereas, Petroleum Ether is a totally different product which is also known a Benzene. In fact, Petroleum Ether is a fraction of crude petroleum which comes out as a distillate which is intermediate between the lighter Naptha and the heavier Kerosene. It is, in fact a mixture of different Alkanes like pentane Hexane and Heptanes. Thus, what M/s. ROCPL are doing in the factory premises is fractional distillation to further separate different fraction of input raw materials. Different fractions of petroleum are distilled at different temperature and each describing as Hexane, Ordinary Grade) and is a mixture of different hydrocarbons. On fractional distillation it is being separated into pure Hexane and a mixture of other Hydrocarbons. The Hexane is then further refined to AR/SG/HPLC Grades, whereas the remaining mixture of hydrocarbons are being referred to by them as petroleum Ether, which, as already discussed above, is actually a mixture of different hydrocarbons. To say that they are obtaining Petroleum Ether from Hexane is technically not possible [source: Wikipedia]. Even if we accept their contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se amounts to manufacture or not, the relevant criteria are to what extent the value is added and whether the product is prepared for a separate use.' In view of all discussions as above, I hold that processes carried out by M/s. ROCPL on Hexane and Petroleum Ether supplied by M/s. RFCL amounts to manufacture and M/s. ROCPL were required to pay duties of excise during the relevant period." 4.5 Commissioner (Appeal) while concurring with the findings of the adjudicating authority has held as follows: "6. It is not disputed that the products of the appellants are of the special grades and find applications in specialized applications like degreasing/clearing of oily surfaces in industries such as pharma, injection manufacturing etc. (LR Grade); clinical research organizations (AR and SG), etc. Undoubtedly, the product manufactured by ROCL have very specific usages which are different from the other commercial usages of hexane or petroleum ether. It has been contended that specialized grades can be put to the use to which commercial grades are put to use. The original utility of commercial grades is not lost as a result of purification. The special grades are only an improved versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and not fractional distillation. We submit that the process carried out on goods which are subjected to grinding, crystallisation of refinement does not amount to a process of `manufacture' within the meaning of Section 2(f) of the Central Excises and Salt Act, 1944. .................. 10. Comparison of the process of manufacture in the SD case with the appellants would indicate some major differences. It may be noted that the appellants are chemically treating the inputs with 2% sodium carbonate solution to make it pH neutral. Further, the outputs are collected at different temperatures in fractional distillation process. As may be seen from para 4 of the order of SD case, that the process undertaken was consisting of simple distillation and not fractional distillation. However, in the instant case, the Lower Adjudicating Authority in para 20 of the impugned order has concluded that the process undertaken by ROCL is fractional distillation only. In the light of above said major difference, the ratio of judgment in the case of SD Fine cannot be made applicable in the instant case. The facts of the case in the matter of M/s. E Merck are also identical to the SD Fine case." 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n developed for certain applications, such as petroleum refining, because simple distillation is not efficient for separating liquids whose boiling points lie close to one another. In this operation the vapours from a distillation are repeatedly condensed and revaporized in an insulated vertical column. Especially important in this connection are the still heads, fractionating columns, and condensers that permit the return of some of the condensed vapour toward the still. The objective is to achieve the closest possible contact between rising vapour and descending liquid so as to allow only the most volatile material to proceed in the form of vapour to the receiver while returning the less volatile material as liquid toward the still. The purification of the more volatile component by contact between such counter current streams of vapour and liquid is referred to as rectification, or enrichment. Multiple-effect distillation, often called multistage-flash evaporation, is another elaboration of simple distillation. This operation, used primarily by large commercial desalting plants, does not require heating to convert a liquid into vapour. The liquid is simply passed from a contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otes of the schedule to the Tariff Act would amount to manufacture). This clause (ii) of the new definition, is too vast and when read with Chapter Note 11 to Chapter 29 of the Central Excise Act, 1985 would render no doubt that the processes undertaken by the appellants amount to manufacture. The Apex Court in the case of Empire Industries [1985 (20) E.L.T. 179 (S.C.)] which was confirmed by the Constitutional Bench in the case of Ujagar Prints and Ors. [1988 (38) E.L.T. 535 (S.C.)], the Supreme Court held that any process creating something else having a distinctive name, character and use would result in manufacture. In SD Fine Chemicals [1995 (77) E.L.T. 49 (S.C.)], the apex court held that the meaning of the term 'manufacture' extends beyond its nature meaning, and re-iterated the earlier decision in the case of Ujagar Prints : "one of the main tests evolved by this Court (for determining whether manufacture has taken place) is whether on account of the processes undertaken or employed by the assessee, the commodity so obtained is no longer regarded as the original commodity but is instead recognized as a distinct and new article that has emerged as a result of the processes." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of purification has rendered the goods marketable, thereby bringing the goods under the mischief of Chapter note describing manufacture. The argument that in the instant case the goods are not marketed or not brought to open market for sale is not relevant. The fact remains that the purified acetone and ethyl acetate can be bought and sold, and once this is so, it is immaterial that the goods sent for purification are returned after purification to the same customer and not marketed or not brought to open market for sale. It is pertinent to mention here that the assessee himself manufactures and sells acetone and ethyl acetate. It may also be added that the various judicial fora have always referred to "marketability" and not actual "marketing" of goods. Hon'ble Tribunal as far back as 1983 in the case of Orient Paper Mills (which decision was followed in several other cases) held that when a marketable commodity is created, excisability follows, whether or not the manufacturer sells it. [1983 (14) E.L.T. 1813]. Re-iterated in the case of Indian Hume Pipe Co. Ltd. reported in 1999 (109) E.L.T. 305 (T). 20. The assessee had gone on to argue that no evidence has been l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt customers based on their specific requirements at profit margin ranging from 40% to 60% in different cylinders. 11.It is pertinent to note that when the appellant was asked about the process which was being carried out on Helium gas before selling it to its customers, the representative of the appellant had refused to give any 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as purchasing. 16.As stated hereinabove, it is clear that the appellant was purchasing Helium at the rate of Rs. 520/- per Cum. and was selling the same after adding 40% to 60% profit. Further, the gas was segregated in different cylinders with different properties and, therefore, the rate at which the gas was purchased 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with distinct name, character and use we are not discussing those authorities separately. Also appellants have stated that raw material received by them could have also been used for the purposes for which the finished product is used. Such a submission is not borne out by the evidences and not tenable. Adjudicating authority has dealt with said argument in his order. We do not find any reason to differ from the same. 5.1 Tribunal has while deciding the issue in case of Merck Specialities Pvt Ltd./ Sunbel Alloys Company of India Ltd. [2015 (317) ELT 375 (T)] on the issue of invoking extended period of limitation, admissibility of CENVAT credit held as follows: "6.2 The next question is whether the invocation of extended period of limitation for confirmation of duty demand is sustainable in law or not. From the records, it is seen that the department was aware of the vaorious activities undertaken by the appellant. If that be so, the department cannot plead that the appellant had suppressed any fact with respect to the activities undertaken by them and the department should have taken action well within the normal period of limitation. Hence, invocation of the extended period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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