1999 (5) TMI 289 - AT - Central Excise

Summary

Issues: Classification of phosgene gas for Central Excise duty, marketability of phosgene gas.

Classification of Phosgene Gas:
The appeal was filed against an order-in-appeal by the Collector of Central Excise, Ahmedabad, who held that phosgene gas is marketable and liable to Central Excise duty due to its extensive use, storage capability, and shelf-life. The appellants argued that a previous order by the Collector of Customs and Central Excise had deemed phosgene gas not to be "goods" and hence not chargeable to duty, contending that the Revenue cannot hold contrary to this finding. The learned SDR for the respondents stated that the issue in the present appeal pertains to the approval of the classification list from 25-10-1991. He highlighted that the Collector of Central Excise, based on technical literature, classified phosgene gas as goods chargeable to duty, a finding not challenged by the appellants, leading to a dismissal plea by the respondents.

Marketability of Phosgene Gas:
The dispute revolved around the marketability of phosgene gas, with the appellants arguing that gases are not considered "goods" and thus not subject to Central Excise duty. The appellants relied on a previous order-in-appeal, but it was clarified that Excise Authorities are not estopped from taking a different view than the approved Classification List, as established in the case law of Elson Machines Pvt. Ltd. v. Collector of Central Excise. The Collector of Central Excise, in the impugned order, extensively detailed the properties, uses, and commercial viability of phosgene gas, emphasizing its importance in various industries and its presence in international trade. The appellants did not contest these findings in their appeal memorandum or written submissions, leading to the rejection of the appeal based on the marketability and classification of phosgene gas under Chapter 28 of the Central Excise Tariff.

In conclusion, the judgment upheld the classification of phosgene gas as goods liable to Central Excise duty based on its marketability and extensive commercial use, dismissing the appeal against the Collector of Central Excise's order-in-appeal. The decision emphasized the authority of Excise Authorities to determine classification despite previous findings and highlighted the importance of technical literature and commercial viability in such determinations.