2014 (4) TMI 458 - AT - Central Excise

Manufacture activity or not - receiving the hydrogen gas directly into the cylinders - apart from receiving the gas under pressure directly into the cylinders, no other activity of labelling, relabeling etc. is being done by them. - Held that - It cannot be said that filling of liquid ammonia from tanker into smaller cylinders does not amount to repacking of gas from bulk packing - Decision in Surya Air Products Pvt. Ltd. Vs. CCE 2012 (12) TMI 503 - CESTAT, NEW DELHI followed - stay granted partly.

Summary

Issues:
Confirmation of duty and penalty for undertaking manufacturing activity by receiving gas directly into cylinders, limitation period for duty payment, pre-deposit amount, compliance monitoring.

Analysis:

1. Confirmation of Duty and Penalty: The appellant's advocate argued that the duty and penalty were confirmed due to the activity of receiving hydrogen gas directly into cylinders, which was considered as manufacturing. The advocate clarified that apart from receiving the gas, no other manufacturing activities like labeling or relabeling were conducted. The advocate relied on various tribunal decisions to support the argument that the activity did not amount to manufacturing.

2. Limitation Period: The advocate contested the impugned order on the grounds of limitation, citing correspondence from 2007 between the appellant and the Central Excise authorities. While acknowledging that Rs. 23 lakhs fell within the limitation period, the advocate proposed offsetting this amount against Cenvat credit for duty paid on the gas. An additional amount of Rs. 9 lakhs was agreed upon to be payable, with an offer to deposit Rs. 5 lakhs as a pre-deposit condition.

3. Pre-Deposit and Compliance: The Departmental Representative referred to a tribunal decision where pre-deposit was required. Upon reviewing the impugned order of a similar case, it was observed that no Cenvat credit claim was made for duty paid on gas received through pipelines. Consequently, the advocate's offer to deposit Rs. 5 lakhs was considered fair and just. The appellant was directed to deposit this amount within 12 weeks, with the balance of duty pre-deposit being dispensed, and recovery stayed during the appeal's pendency.

4. Compliance Monitoring: The matter was scheduled for compliance verification on 30-4-2013 to ensure the deposit of the pre-agreed amount within the stipulated timeframe. The judgment was dictated and pronounced in an open court setting, emphasizing the procedural transparency of the decision-making process.