2010 (8) TMI 392

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.... 2. The appellants challenge order dated 30th December 2009 whereby the Commissioner, New Delhi has confirmed the demand and ordered for recovery of amount of Rs. 1,60,26,799/- and education cess amounting to Rs. 1,48,257/- alongwith interest thereon while ordering adjustment of Rs. 50,00,000/- already paid and has imposed penalty of equal amount besides penalty of Rs. 1,00,000/- against Shri Deepak Dua, Proprietor of M/s. Bobby Air Gases, Moti Nagar, New Delhi, penalty of Rs. 25,000/- against Shri Vinod Chopra, Proprietor of M/s. Sigma Gases, penalty of Rs. 25,000/- against Shri Satyaprakash, Partner of M/s. Jai Bharat Industries, Hisar, penalty of Rs. 25,000/- against Shri Rajesh Swami, Authorized Signatory of M/s. J.J. Steels His....

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.... submitted that the appellants were in fact mislead by the Chapter Note 10 to Chapter 28 of the Tariff Act which relates to repacking of the commodity from both pack to retail packs. Under the wrong belief that refilling of the small containers with gas brought in tankers amounted to repacking within the meaning of said expression under the chapter note of said chapter, the appellants had been paying duty on the said activity. However, pursuant to the decision of the Tribunal in the matter of Ammonia Supply Company v. CCE, New Delhi reported in 2001 (131) E.L.T. 626 (Tri. - Del.) and decision of the Apex Court in the matter of CCE, Mumbai v. BOC (I) Ltd. reported in 2008 (226) E.L.T. 323 (S.C.) and the Circular issued by the Board being Cir....

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.... confined to the activity of repacking. The chapter note also relates to the activity of labelling and re-labelling as well as any other treatment which would render the product marketable to the consumer. Being so, according to the learned Jt. CDR merely because the refilling of small tankers may not amount to repacking that itself will not be a justification for setting aside the impugned order and holding that the appellants were not engaged in the manufacturing activity. He further submitted that the department is already in the process of challenging the order of Commissioner (Appeals) in relation to the order passed by the Commissioner (Appeals) in the matter of proceedings relating to the seizure of the gas containers. Since, the app....