2017 (1) TMI 1311

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....e learned Tribunal having interdicted the attempt on the part of the adjudicating authority to hold that the assessee was liable to pay the differential duty on the finding recorded on the core issue, namely, that the activity undertaken by the assessee did not amount to manufacture, the other questions arising, namely, the availability of the extended period of limitation under the proviso to Section 11A of the Act and also whether the sales/transfers were to related person and not made at arms length were not gone into by the learned Tribunal. 2. The above truncated scope of the matter is what would require consideration of this Court in the present proceedings. 3. We have heard the learned counsels for the parties. 4. Note 10 of Chapter 28 of the Tariff Act is in the following terms : "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'." 5. Reading the aforesaid Note 10 of Chapter 28 of the Tariff Act would go to show that the deeming provision contained therein with regard....

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....pter 28 of the Tariff Act mandates that the additional requirement that has to be satisfied so as to attract the deeming provision contained therein is that repacking from bulk packs to retail packs have also taken place. 8. The above issue need not detain the Court. We have a decision of the learned Tribunal in Ammonia Supply Company vs. CCE, New Delhi 2001 (131) E.L.T. 626 (Tri.-Del.) wherein the Tribunal has taken the view that Amonia coming in tankers cannot be treated to have come in bulk packs. In this regard, there is also a Circular dated 08.10.1997 where this question has been dealt with by the Ministry of Finance (Department of Revenue) in the following way:- "In this context clarification have been sought regarding the scope of the expression "relabelling of containers and repacking from bulk packs". Doubts have been raised as to whether receiving of liquid chemicals in bulk in containers and offloading the same at the dealers premises or godown into available empty vessel and consequent delivery of these material in the very same condition to customers against orders can be held to be an act of repacking operations as envisaged in the said chapter note or not. Whet....

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....e economical to the customer as also convenient and time saving. The mixing of oxygen was with inert gases viz., crypton, helium, neon etc. which did not chemically react with each other. Since the mixture was with inert gases like argon, crypton, etc. which did not react chemically with each other, the inert gases remain separate even though kept in the same container. There was no lending or borrowing of any electron by either of the gases and the gases remained individually identified. The individual gases also retained their properties and were separately identifiable while in use. For example, when the mixture of argon and nitrogen is used in the manufacture of electric lamp, the argon gas performs the function of making the illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, t....

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.... 10 of Chapter 28 of the Tariff Act to the present case. 15. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd.(supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question. 16. The reliance placed by the appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited vs. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the assessee by contending the same to be a "trade-secret". In these circumstances, this Court in coming to its conclusion that the process deployed amounted to manufacture within the meaning of Note 10 of Chapter 28 of the Tariff Act relied on certain other f....