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TMI Blog1987 (2) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... as alleged that the appellants had exceeded more than one horsepower and 0.5 horsepower in the manufacture of aerated waters for the purpose of carbonation and washing of bottles. The appellants were disqualified from availing the concession under Notification 293/77, dated 15-9-1977. Under the notification the Government had exempted the aerated waters manufactured in the factory subject to the condition that no power was used and if power was used it was restricted to one H.P. for carbonation and half H.P. for washing of bottles. The appellants are using only one H.P. for carbonation and half H.P. for washing of bottles. The appellants explained to the Asstt. Collector that the classification list filed by them was approved by the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is justified. 4A. The relevant portion of the notification concerned is reproduced below for determining the controversy :- In exercise of the powers conferred by Sub-Rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supression of the notification of the Government of India in the Ministry of Finance, Department of Revenue No. 217/77-Central Excises, dated the 15th July, 1977, the Central Government hereby exempts aerated waters, falling under Item ID of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), manufactured by or on behalf of a manufacturer in one or more factories, from the whole of the duty of excise leviable thereon. Provided that no power is used in any process of such manufacture or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain temperature would disqualify the appellants to the benefit of the exemption. It is significant to note that the notification specifies use of power in any process of such manufacture namely, manufacture of aerated waters. The chilling of water, it must be said, cannot be considered to be a process incidental or ancillary to the manufacture of aerated waters. The raw-material namely water continues to be water despite the chilling. In a place where power is not available, there is no process of chilling of water before the aerated water is manufactured. In other words, there is no evidence that aerated waters could not be manufactured without first chilling the water. If chilling of water is a primary pre-requisite, then it may amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is to be allowed and the impugned order to be set aside. However, I would like to say a few words in this connection. 14. The allegation of the department is that power was used by the appellants in lifting water to the overhead tank and in chilling water. Apparently, the Appellate Collector has not considered the use of power in pumping water to the overhead tank as amounting to power used in the process of manufacture of aerated waters. Therefore, what remains for us to consider is as to whether chilling of water by use of power amounts to a process incidental or ancillary to the manufacture of aerated waters. Chilling is apparently resorted to in order that the process of absorption of carbon dioxide becomes relatively more efficie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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