1985 (7) TMI 359 - AT - Central Excise

Tribunal rules 'fermentation gas' not 'compressed carbon dioxide' under Excise Act, no duty applies

The Tribunal ruled that the 'fermentation gas' containing 99% CO2 was not classified as 'compressed carbon dioxide' under item 14-H of the Central Excises ... - Issues Involved:1. Classification of 'fermentation gas' containing 99% CO2 under item No. 14-H of the First Schedule to the Central Excises and Salt Act, 1944.2. Compliance with Central Excise Rules 9 and 174.3. Determination of whether the gas was 'compressed carbon dioxide' as per item 14-H CET.4. Validity of show cause notice and corrigendum.5. Applicability of excise duty on captively consumed gas.6. Penalty under Rule 173-Q.Detailed Analysis:1. Classification of 'Fermentation Gas':The core issue was whether the 'fermentation gas' containing about 99% CO2 should be classified under item No. 14-H of the First Schedule to the Central Excises and Salt Act, 1944, as 'compressed carbon dioxide.' The appellants contended that the gas was not 'compressed carbon dioxide' within the meaning of item 14-H CET, whereas the Department argued that it was.2. Compliance with Central Excise Rules 9 and 174:The Department alleged that M/s. Mohan Meakins Breweries Ltd. contravened Rules 9 and 174 by manufacturing CO2 gas without obtaining a central excise license and consuming it without paying the requisite duty. Similar allegations were made against M/s. Punjab Breweries Ltd.3. Determination of 'Compressed Carbon Dioxide':The Tribunal examined whether the gas in question met the definition of 'compressed carbon dioxide' as understood in the market. The Tribunal referred to the Supreme Court's decision in South Bihar Sugar Mills Ltd. v. Union of India, which clarified that 'compressed carbon dioxide' is generally understood as CO2 compressed in cylinders at pressures ranging from 1000 to 1800 pounds per sq. inch. The Tribunal concluded that the fermentation gas in question, though containing over 99% CO2, was not compressed in cylinders at the specified pressures and did not conform to ISI specifications for being odourless.4. Validity of Show Cause Notice and Corrigendum:The Collector had issued a show cause notice and a subsequent corrigendum, which the appellants argued was time-barred. However, the Tribunal did not delve into this issue, as it found that the gas did not fall under item 14-H CET, rendering the other contentions moot.5. Applicability of Excise Duty on Captively Consumed Gas:The Tribunal noted that the gas was consumed within the factory and was not 'compressed carbon dioxide' as per item 14-H CET. Therefore, no excise duty was leviable on the captively consumed gas.6. Penalty under Rule 173-Q:The Collector had imposed a penalty on the appellants for contravening the Central Excise Rules. However, since the Tribunal found that the gas was not 'compressed carbon dioxide' under item 14-H CET, the penalty was also set aside.Conclusion:The Tribunal set aside the impugned orders, concluding that the fermentation gas did not fall under item 14-H CET as 'compressed carbon dioxide.' Consequently, no excise duty was leviable, and the penalties imposed were also annulled. The appeals were allowed with consequential relief to the appellants.