2013 (8) TMI 347 - AT - Central Excise

Tribunal rules captively consumed carbon dioxide is marketable, overturns Commissioner's decision

The Tribunal set aside the Commissioner's decision and upheld the Adjudicating Authority's ruling that carbon dioxide arising from a manufacturing process ... Marketability of carbon dioxide - Commissioner held gas not marketable as that was not being capable of bought and sold - Held that:- appellant itself has testified that the shortage of carbon dioxide was met from purchase of such goods made from the market - gas is normally filled in cylinders and bought and sold - Following decision of ARTOS BREWERIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, GUNTUR [1996 (5) TMI 265 - CEGAT, MADRAS] - Decided in favour of Revenue. Issues:1. Marketability of carbon dioxide arising out of manufacturing process and captively consumed.Analysis:The judgment in this case revolves around the issue of whether carbon dioxide arising out of a manufacturing process and captively consumed should be considered dutiable. The Adjudicating Authority initially held that the carbon dioxide was marketable based on the testimony of the Manager of the appellant, who stated that the appellant purchased carbon dioxide gas from the market whenever a shortage was experienced. The Authority found the impugned goods to be marketable based on this evidence.However, the Commissioner, in the appeal filed by the assessee, abruptly concluded that carbon dioxide gas was not marketable as it was not capable of being bought and sold. The Commissioner failed to consider the appellant's own statement, where it was clearly mentioned that carbon dioxide shortages were met by purchasing such goods from the market. The judgment criticized the Commissioner's decision, stating that it lacked common sense as gas is a commodity normally bought and sold in cylinders. The judgment also highlighted that the Commissioner's decision did not align with a previous Tribunal decision in a similar case.As a result, the Tribunal set aside the Commissioner's order and upheld the decision of the Adjudicating Authority, allowing the Revenue's appeal. The judgment concluded by disposing of the Cross-Objection in line with the decision made in the appeal. The case highlights the importance of considering all relevant evidence and applying logical reasoning in determining the marketability of goods for duty implications.(Dictated and pronounced in open court)