TaxTMI 
TaxTMI 
1999 (2) TMI 125
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.... appellants had already paid duty on hydrogen gas received by them through pipelines from Grasim Industries. A question has arisen in the aforesaid facts and circumstances whether another duty liability on compressed hydrogen gas in cylinders devolves on the appellants herein or not. 2. Learned Advocate, Shri Shiv Dass for the appellants submits that no new commodity has arisen as a result of process undertaken by the appellants. The process undertaken can be briefly summed as compressing, drawing and filling of the hydrogen gas in cylinders. The various purposes of the aforesaid three processes before their clearance from the factory is set out in their reply dated April 1997 to the show cause notice :- (a)  Compressing ....
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....gas to the required quantity. He can purchase as many number of cylinders he wants to and use those number of cylinders that are required for his manufacturing activity. Learned Advocate further submits that what they obtained previously from Grasim Industries was hydrogen gas and what they ultimately sold was also hydrogen gas; merely the form of delivery has been changed i.e. hydrogen gas filled in cylinders. He also submits that TH 2804 and its sub-heading read as follows :- "28.04 Hydrogen, rare gases and other non-metals. Oxygen (including liquified or solidified gas) - 2804.11 Medicinal grade - 2804.19 Other - &n....
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....r of M/s. D.C.W. held that for marketing Nitrogen it is essential to carry out chilling, drying and liquidification before this can be conveniently stored and transported. Thus it has been held that the process of drying and chilling/liquidification of gas is necessary so as to store in cylinder are necessary for holding that the process of manufacture took place after Hydrogen was received at the site. In the instant case also the noticee was carrying out the process of drying and thereafter compressing the gas so as to store it in cylinders. Thus relying on the judgment of Hon'ble, it can be held that the process carried out by the Noticee amounts to process of manufacture and the noticee is liable to pay duty. The noticee's claim that wh....
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....iculty in establishing that the article is the result of a process of manufacture, in the event of difficulty, it would be open to the Excise Authorities to seek a direction requiring the assessee to set out in writing what it does to obtain the article. Too often, as our experience in the Court and in the High Courts, before the Tribunal was established, shows, lack of evidence has led to the failure of the case of the Excise Authorities and, consequently, to the loss of revenue to the State. 7. Failure to lay the requisite evidence cannot be made up by reference to authoritative publications unless the Excise Authorities inform the assessee that they propose to rely on the same before the adjudicating authority it is then open to ....
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....this case. In view of the foregoing submissions, learned Advocate prays for allowing the appeals. 3. Opposing the contention, learned JDR, Shri Sanjeev Srivastava submits that it is not correct to say that hydrogen gas in pipeline can be commercially used. The only commercial use, according to him, is by filling the gas into cylinders and then only it is commercially used. He further submits that it is not merely compressing of the gas but the assessee is also undertaking drying of the gas. Therefore, it is a new commodity which came into existence from impure hydrogen gas to pure commercial gas. Regarding the affidavit filed by the Manager, Shri Pankaj Mittal, Shri Sanjeev Srivastava, learned JDR submits that hydrogenation can take....
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.... further relies on the following judgments of the various Courts :- (1) Modison Metal Refineries v. C.C.E., Bombay - 1996 (88) E.L.T. 292 (2) DCW Ltd. v. U.O.I - 1991 (56) E.L.T. 310 (Mad.) (3) Henna Export Corporation v. C.C.E. - 1993 (67) E.L.T. 907 (Para 5) (4) Jupiter Engravers v. U.O.I. - 1993 (68) E.L.T. 60 (Bom.) and (5) Hawkins Cookers Ltd. v. C.C.E., Chandigarh - 1997 (96) E.L.T. 507 (Paras 3 & 4). Learned JDR further submits that in view of the aforesaid technical literature relied upon by him, the matter if considered may be remanded to the adjudicating authority to give a finding whether the affidavit of Shri Pankaj Mittal is acceptable or not. 4. We have carefully considered the ple....