TaxTMI 
TaxTMI 
2012 (12) TMI 503
X X X X Extracts X X X X
X X X X Extracts X X X X
....dentification marking of the appellant and sold to various consumers. Filling process is done with the aid of filter, dehydration and compressor. 3. Earlier the appellant was registered with the excise department as manufacturer of excisable goods. In the year 2006, the appellant came to know that some other persons engaged in the filling and marketing of gas cylinders were not paying excise duty to the department and they were registered with excise department only as traders in excisable goods. 4. The appellant thus wrote a letter dated 23-11-2006 to the Assistant Commissioner, Central Excise Division, Nihal Bagh, Patiala which inter alia reads thus :- "Respectfully submitted that M/s. Surya Air Products (P) Ltd., Rajpura is registered under Reg. No. AAECS1266RXM001 with CE deptt. as manufacturer of excisable goods. We receive Hydrogen gas through pipeline and compress and fill the same in the cylinders. Our unit is attached to M/s. Siel Chemical Complex a chloalkalies producer where Hydrogen is produced as a co-product in the manufacture of caustic soda & Chlorine. We are purchasing this Hydrogen which is transported through a pipeline. We pass the Hydro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Noticee, the Superintendent, Central Excise, Range II, Rajpura vide letter C.No. CE20/surrender of RC/Surya/R-II/81/06/1792 dated 23-11-2006 wrote to the noticee as under :- "Section Note 9 of Chapter 28 states that in relation to products of this Chapter, labelling or relabelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture. You are requested to confirm whether you fall under the purview of the above mentioned Section Note" 6. With reference to the above letter dated 23-11-2006 of the Superintendent, Central Excise, Range-II, Rajpura, the noticee in their letter Ref. SAPPL/16/1815 dated 8-12-2006 stated as under :- "Hydrogen is sold to us through pipeline by M/s. SIEL Chemical Complex, Rajpura. This is compressed & filled in cylinders. We are not giving any treatment to the hydrogen to make the product marketable. We are neither labelling nor relabelling of containers nor repacking from bulk to retail pack." Thereupon, the noticee surrendered their manufacturer's registration. 7. The Department was of the view that filling....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cie there appears to be no justification of invoking extended period of limitation under proviso to Section 11A of Central Excise Act, 1944. 12. Coming to the second issue raised by the learned Counsel for the appellant that he has drawn our attention to chapter note 9 of Chapter 28 which is reproduced thus : "9. In relation to products of this Chapter, labelling or relabelling of containers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the customers, shall amount to manufacture." 13. Referring to the aforesaid provision, the learned counsel for the appellant has pleaded that the appellant was selling compressed gas in cylinders which were returnable and only for the purpose of identification appellant has put his marking on the cylinders without appending any brand name or label on the same. Secondly, it is contended that admittedly the gas was supplied by SIEL Chemical Complex, Rajpura through pipeline and it was filled in cylinders through compressor as such it cannot be prima facie said that the gas in question was packed in retail pack (cylinders) by the appellant from the bulk packing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt case, undisputedly, M/s. SIEL Chemical Complex, Rajpura are manufacturer of hydrogen gas in bulk. From bulk production the gas is supplied to the appellant through pipeline whereby they fill the gas in small cylinder for marketing to the consumer. This process, in our view, prima facie amounts to repacking of bulk gas in small packs i.e. cylinders after receiving the same from bulk hydrogen gas through pipeline, therefore, applying the principle laid down by the Supreme Court and going by the Chapter Note 9 of Chapter 28, in our view, this amounts to process of manufacture. 18. The appellant has strongly relied upon the judgment of the Tribunal in the matter of Ammonia Supply Company (supra) where the Tribunal took the view that repacking of liquid ammonia from tankers into smaller cylinder does not amount to repacking as such said process will not fall within the definition of deemed manufacturer given in chapter note. To appreciate this contention, it would be useful to have a look of the relevant observation of the Tribunal which are inter alia reproduced thus: 6. The department has nowhere alleged that the assessee in this case resorted to labelling or re-lab....