TaxTMI 
TaxTMI 
2023 (9) TMI 918
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....mmercial /I/II/UHP grade, Helium gas Grade I/II, Hydrogen gas Grade I/II classifiable under Chapter heading No. 2804 of Central Excise Tariff Act, 1985. 2. The department working on an intelligence that M/s. Vadilal Chemicals Limited in connivance with M/s. Vadilal Gases Limited have indulged in evasion of Central Excise duty by suppression of fact that M/s. Vadilal Gases Limited were processing Hydrogen gas by grading it in various grades and clearing the same without payment of duty to M/s. Vadilal Chemicals Limited. During the course of investigation department revealed that M/s. Vadilal Chemicals Limited, a trading firm was procuring hydrogen gas of commercial grade in bulk i.e. in a Skid (each containing 152 cylinders) from various suppliers such as M/s. DCM Shree Ram, M/s. Gujarat Fertilizers Limited etc. Hydrogen gas so procured by M/s. Vadilal Chemicals Limited was sent to M/s. Vadilal Gases Limited for processing and purification and grading of the same. M/s. Vadilal Gases Limited after receiving the commercial grade hydrogen gas from M/s. Vadilal Chemicals Limited processed the same and graded the hydrogen gas cylinders as per their purity and cleared the same without ....
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....pugned order-in-original dated 16.01.2014 whereunder the learned Adjudicating Authority has confirmed all the charges as proposed in the show cause notice and has passed the following order:- ORDER 5.1 For SCN No. DGCEWAZU/36-52/2011-12 dated 08.06.2011: (i) I confirm that the process of purification, grading and labeling carried out on commercial hydrogen gas should be treated as 'manufacture' of said gas and VGL is the manufacturer of the Purified Hydrogen Gas; (ii) I also confirm Central Excise duty amounting to Rs.23,76,942/- not paid on the clearances of purified graded hydrogen under Section 11A (2) of the Act and the same should be recovered from them. (i) I also impose mandatory penalty of Rs. 23,76,9421/- on them under Sec. 11 AC of the Act and Rule 25 of the Central Excise Rules in view of their willful evasion of Central Excise duties. If the duty along with interest and 25% of the imposed penalty is paid within 30 days of the receipt of this order, penalty get reduced to 25% of the imposed penalty. (iii) I also confirm the Interest under Section 11AB of the Act should not be charged and recovered from them. ....
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....ority and the appellant has not provided any data by which this could be examined and a conclusion arrived at. Under the circumstances I have no option but to require the verification of the figures, if necessary after giving the appellant an opportunity to be heard in person. The adjudicating authority will examine the matter in the limited scope of cum-duty price and calculations, which are to be submitted by the appellant before the adjudicating authority within one month of receipt of this order, and pass a speaking order on this portion alone. 10. Now, I take up the plea of the appellant regarding limitation. Again I find the order of the Supreme Court in case of Air Liquid North India Pvt Limited vs. CCE, Jaipur-l as refered in para supra, which held as under: "11. The ld Counsel has also raised the issue of limitation by contending that the demand is time-barred as the demand period ranges from 1998-1999 to 2000-2001 whereas the show cause notice was served on the respondents on 5- 7-2002. But this contention of the ld. Counsel cannot be accepted as there was suppression of facts by the respondents from the department. They never disclosed the details of th....
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....on;ΙΟ No.108-111/VDR-II/DEM/ADC/ADJ/ MKP/VADILAL/ 2016-17 30.08.2016 passed by the Joint Commissioner of C.Ex., Vadodara-ii in case of Vadilal Gases Limited. 6. As regards the department's appeal challenging the remand order of Commissioner (Appeals) for adjudication of het issue relating to "related party transaction" as per the provisions of Section 4 of Central Excise Act, 1944 read with Rule 9 of Central Excise (Valuation) Rules, 2000. It is being argued that it is settled law in view of the Hon'ble Supreme Court decision in the case of MIL India Limited vs. CCE, Noida reported in 2007 (210) ELT 188 (S.C.) that Commissioner (Appeals) has the powers to remand back the matter for fresh adjudication and therefore the appeal filed by the department does not hold ground and need to be dismissed. 7. We have also heard Shri G. Kirupanandan, learned Assistant Commissioner (AR) who reiterated the findings given in order-in-original and order-in-appeal. 8. After hearing both the sides we find that the only question which needs to be answered by us in this matter is whether; (i) Central Excise duty is liable on purified/ graded Hydrogen gas supplied by M/s. ....
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....at the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 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 v. Commissioner of Central Excise - (2011) 15 SCC 264 = 2011 (271) E.L.T. 321 (S.C.) 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". I....
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.... Hon'ble Supreme Court was not available before the Adjudicating Authority while the matter was originally decided. The issue regarding determining whether the related party transaction exist in this case or not, as per Section 4(1) (b) of Central Excise Act, 1944 read with Rule 9 of Central Excise (Valuation) Rules, 2000 is concerned, since the matter has already been remanded back to the original adjudicating authority by impugned order-in-appeal dated 31.03.2015, we are of the view that Adjudicating Authority while deciding related party issue should also re-adjudicate the matter of dutiability of the purified/ graded Hydrogen gas as per the Hon'ble Supreme Court decision in the appellant's own case reported in 2017 (346) ELT 161 (SC). 11. So far as the Appeal No. E/11402/2014-DB of M/s. Vadilal Chemicals Limited is concerned, the appellant sought refund of Rs. 15 Lakh which was deposited by them during the course of investigations. The main ground of the appellant is that in the impugned order-in-original only penalty of Rs. One Lakh has been imposed on the appellant and therefore, the amount deposited by them during the course of investigation should have been sanctioned by....