2016 (9) TMI 573 - AT - Central Excise

Duty liability - marketing of Hydrogen gas cylinder - filling process - appellant received Hydrogen gas through pipeline and filed the same in returnable gas cylinders with identification mark of itself and sold to various consumers - filling process is done by the appellant with the aid of filter, dehydration and compressor - Held that - the issue is no more res-integra as is decided by the Tribunal for the earlier period in the appellant s own case on the identical issue reported in 2016 (1) TMI 1055 - CESTAT NEW DELHI that the activity undertaken by the appellant does not amount to manufacture. Therefore, in view of the same we hold that the activity undertaken by the appellant does not amount manufacture and the appellant is not liable to pay duty. - Decided in favour of appellant with consequential relief

Summary

Issues:
- Whether the activity undertaken by the appellant amounts to manufacture?
- Whether the appellant is liable to pay duty on gas cylinders?

Analysis:
1. Issue 1 - Activity Amounting to Manufacture:
The appellant's activity involved receiving Hydrogen gas, compressing it, and filling it into cylinders with the aid of a compressor, filtration, and dehydration. The Revenue contended that this activity amounted to manufacture, leading to duty liability on the gas cylinders sold. The Tribunal analyzed the activity to determine if it rendered the product marketable to the consumer, as per Chapter Note 9 of Chapter 28 of the Central Excise Tariff Act, 1985. Reference was made to Chapter Note 5 of Chapter 27, which stated that the process of compression of natural gas for marketing as Compressed Natural Gas was considered manufacture. However, it was noted that the activity of compression alone did not amount to manufacture as per Chapter Note 9. The Tribunal compared the appellant's case to a precedent involving Ammonia Supply Company, where a similar activity did not constitute a manufacturing process. Additionally, in the case of Shivam Industries, it was established that treating a product to render it marketable to consumers did not apply to industrial users or manufacturers. As the buyers in this case were Vanaspati manufacturers, not end consumers, the activity did not amount to manufacture. The Tribunal concluded that the gas was already marketable in its original form, and the appellant's activity did not change that marketability, thus ruling that the activity did not constitute manufacture.

2. Issue 2 - Duty Liability:
The Tribunal, based on the analysis of the activity not amounting to manufacture, held that the appellant was not liable to pay duty on the gas cylinders. Citing the decision reached in the case, the impugned orders were set aside, and the appeals were allowed with any consequential relief. The judgment was pronounced in open court, providing relief to the appellant against the duty liability imposed by the Revenue.

In summary, the Tribunal ruled in favor of the appellant, determining that the activity of compressing and filling hydrogen gas into cylinders did not amount to manufacture, thereby relieving the appellant from duty liability on the gas cylinders sold to Vanaspati Ghee manufacturers.