9911796707
TMI Blog2001 (7) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard Shri B.J. Mookherjee, ld. Advocate appearing for the appellant and Shri A.K. Chattopadhyay, ld. JDR for the Revenue. 3. The appellants were purchasing liquid Oxygen in tankers. On receipt of the said liquid Oxygen in their premises as an input, a sample was being drawn from the tankers and undergone laboratory test. Thereafter the said Oxygen was cleared from their factory for medicinal purposes without disturbing the entire contents of the tankers. 4. On receipt of the liquid Oxygen, the appellants claimed the modvat credit of 20% duty paid on the said liquid Oxygen by their manufacturers. However, at the time of clearance of the said liquid Oxygen, they paid duty @ 5% in terms of Notfn. No. 114/94-C.E., dt. 3-6-1994. 5. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the period involved in the present appeal is from October 1994 to December 1994 and from July 1995 to August 1995. The show cause notice was issued on 5-12-1997 thus after a period of six months from the relevant date. Thus submits the ld. Advocate that the entire demand of duty is barred by limitation. He submits that a classification list was filed by them and it was mentioned in the said classification list that they would be availing the modvat credit of duty on the inputs. In these circumstances there cannot be any suppression of facts or misstatement on their part so as to invoke the longer period of limitation. They were also maintaining RG-23A part-I and part-II and submitting the copies of the same to their jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat testing of a product by itself cannot be held to be a process of manufacture as held by the Tribunal in the case of Bajaj Auto Ltd. - 1999 (105) E.L.T. 361 (T) and Fycat Engg. - 2000 (122) E.L.T. 168 (T). As regards the invocation of longer period he submits that though the appellant had filed a classification list showing the manufacture of medicinal Oxygen, but in fact they never had the facility to manufacture the said medicinal Oxygen. He submits that all these factors came into light on examination of Shri P. Venkatesh, who deposed that no facility for manufacturing medical grade liquid Oxygen existed in their factory. He further disclosed that question of converting liquid Oxygen into medical grade Oxygen would arise only when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of medical grade Oxygen, whereas the fact was otherwise. They never disclosed the processes undertaken by them for so called manufacture of medical grade Oxygen. Their representative Shri P. Venkatesh has clearly admitted that they were not having any facility of converting liquid Oxygen into medical grade liquid Oxygen and if the samples tested negative they would have sent the tankers to other place for conversion. All these facts justified invocation of longer period of limitation. Accordingly I do not find any merits in the said plea of the appellant and confirm the demand of duty against them. 12. As regards the imposition of penalty I agree with the appellants that the same could not have been imposed to the extent of 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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