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TMI Blog2013 (12) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... d Argon Gas falling under Chapter 28 of the Central Excise Tariff Act, 1985 in tankers from M/s. RCF Ltd. and others and unloaded the gas into tanks in the factory and thereafter filled the gas into cylinders. Till 31.3.2002, they were discharging Central Excise duty liability on the Argon Gas filled in cylinders. After the decision of the Tribunal in the case of Ammonia Supply Co.- 2001 (131) ELT 626 (Tri-Del), wherein it was held that refilling of gas from tankers to cylinders would not amount to manufacture was known, the respondent claimed that they were not liable to pay excise duty. Therefore, a show-cause notice dated 17.6.2003 was issued demanding excise duty of Rs. 6,68,494/- for the period April, 2002 to March,2003 along with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent would amount to 'manufacture'. Therefore, the orders passed by the adjudicating authority and the appellate authority are bad in law and needs to be set aside. 4. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum and also submits that the cylinders appellant used for re-filling are bearing the name 'Sanghi Oxygen' that has been inscribed by punching the same onto the cylinders and this fact has not been considered in the impugned orders. He also relies on the decision of the Tribunal in the case of Surya Air Products Pvt. Ltd. - 2012 (283) ELT 107 (Tri-Del)., wherein at the stage of grant of stay, it was held that refilling of Hydrogen Gas from bulk to small c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture'. In the present case, on perusal of the show-cause notice and the order passed by the lower appellate authority, nowhere it is coming out that the appellant has done labeling and re-labeling on the gas cylinder. It is also seen that in many cases, the gas has been supplied by the appellant in the buyer's cylinders. If that be so, the question for re-packing from bulk pack to retail pack would not arise. We find that the decision of the Tribunal in the case of Surya Air Products Pvt. Ltd.(supra) is also of no help to the Revenue, because it is only a prima facie view taken at the interim stage of stay and it is a settled position in law that interim decision cannot be considered as a precedent. 7. In view of the above, we do not f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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