2000 (5) TMI 651 - AT - Central Excise

Summary

Issues involved:
Whether the nitrogen gas used for purging tankers within the factory amounts to consumption within the factory for exemption under Notification No. 40/85-C.E., dated 17-3-1985.

Analysis:
The appeal involved a dispute regarding the eligibility of nitrogen gas used for purging tankers within the factory for exemption under Notification No. 40/85-C.E. The appellant, a gas manufacturing company, argued that the nitrogen gas was essential for technical and statutory requirements during the manufacture of LPG. They contended that the nitrogen gas, besides aiding in purging tankers, also acted as an anti-dusting agent. The appellant highlighted that the nitrogen gas was exempt from duty if consumed within the factory of production as per the relevant notifications. The Deputy Commissioner had imposed a duty demand on the appellant, alleging that charging fees for purging tankers belonging to other parties within the factory premises made the nitrogen gas liable for duty. The Commissioner (Appeals) upheld this decision, stating that purging tankers inside the factory was a matter of convenience and did not constitute consumption within the factory of production.

The appellant's counsel argued that the condition for exemption under the notification only required the nitrogen gas to be consumed within the factory of production, without specifying that it must be used in the manufacture of a final product. Referring to specific entries in the notification, the counsel emphasized that where consumption in the manufacture of products was necessary, it was explicitly mentioned. Additionally, the counsel pointed out Rule 7 of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981, which mandated purging tankers before filling, further supporting the contention that nitrogen gas was consumed within the factory.

The Respondent, represented by the learned SDR, countered the arguments by asserting that charging fees for purging tankers necessitated discharging duty liability on the nitrogen gas, as it implied clearance of goods from the factory of production.

After considering the submissions, the Tribunal observed that the nitrogen gas manufactured by the appellant was indeed consumed within the factory of production for purging tankers, as required by Rule 7. The fact that the appellant charged fees for this service did not negate the consumption of nitrogen gas within the factory. The Tribunal emphasized that the sole condition for exemption under the notification was the consumption within the factory of production, which was satisfactorily met in this case. Consequently, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.