1997 (12) TMI 339 - AT - Central Excise

Issues Involved:
1. Marketability of impure acetylene gas.
2. Excisability of the impure acetylene gas under T.I. 14H(vi) when captively consumed.

Issue 1: Marketability of Impure Acetylene Gas

The primary issue was whether the acetylene gas produced by the assessees, which was impure, could be considered marketable. The Tribunal previously observed that acetylene, even if slightly impure, continued to be recognized as commercial acetylene and could be marketed with due precautions. However, the Supreme Court set aside this judgment, noting that the Tribunal did not consider the material provided by the appellants regarding the extent of impurities making the gas highly explosive and dangerous for handling and transport, thus rendering it non-marketable.

The assessees relied on a report by the Department's Chemical Examiner, which indicated that the impure gas contained impurities like phosphine, ammonia, arsenic, and hydrogen sulfides, and could not be marketed without purification. Additionally, technical literature and certificates from Essen & Co. confirmed the presence of moisture and impurities in the gas. The assessees argued that the gas in its impure state did not conform to ISI specifications and was not marketed in an undissolved condition.

The Tribunal considered extensive technical literature and expert opinions, which described the explosive nature of acetylene gas and the necessity of dissolving it in acetone for safe transportation. The literature indicated that acetylene gas, whether pure or impure, is not marketed via pipelines due to its unstable and explosive nature. The Tribunal accepted the assessees' contention that the impure gas, containing toxic compounds, would not meet customer approval even if marketed in appropriate containers with necessary safety measures.

Issue 2: Excisability of Impure Acetylene Gas under T.I. 14H(vi) When Captively Consumed

The Tribunal had to determine if the impure acetylene gas, produced during the manufacture of calcium carbide and acetylene black, was excisable under T.I. 14H(vi) of the Central Excise Tariff. The Tribunal noted that the gas was captively consumed by the assessees in its impure state. The assessees argued that the impure gas did not meet the conditions of being usable, movable, saleable, and marketable, as established in the Supreme Court's judgment in the Delhi Cloth & General Mills Co. Ltd. case.

The Tribunal found that the impure acetylene gas, due to its explosive and unstable nature, was not marketable. The Collector (Appeals) had also observed that the impure gas could not be marketed within the meaning of the Supreme Court's decision in the South Bihar Sugar Mills case. The Tribunal held that intermediate goods produced and used for captive consumption were not liable to duty if they were not marketable, irrespective of their inclusion in the tariff.

The Tribunal referenced several judgments, including the South Bihar Sugar Mills case, which held that gas produced through a kiln containing impurities was not known as carbon dioxide to the trade and thus not excisable. Similarly, in the case before the Tribunal, the impure acetylene gas was not marketable and therefore not excisable.

Conclusion:

The Tribunal concluded that the acetylene gas produced by the assessees was not marketable due to its impurities and the fact that it was not packed in a manner suitable for safe marketing. Consequently, the gas was not excisable under T.I. 14H(vi). The Tribunal upheld the order of the Collector and dismissed the appeal from the Revenue, affirming that the mere fact of captive consumption did not make the gas dutiable.

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