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TMI Blog2015 (6) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... t comparable with the gas which was being produced in their factory. Therefore, just because, the respondent were purchasing carbon dioxide from other suppliers, it cannot be presumed that the carbon dioxide generated in their unit was of the same character and properties as the gas being purchased from outside and hence, would be marketable. - it is the decision of the Tribunal in the case of Mohan Breweries & Distilleries Ltd. (1999 (1) TMI 153 - CEGAT, MADRAS) which would be applicable to the facts of this case. - Decided against Revenue. - E/CO/96/2006, Appeal No. E/18/2006/EX[DB] - Final Order No. 50923/2015-EX(DB) - Dated:- 27-2-2015 - Rakesh Kumar, Member (T) And S. K. Mohanty, Member (J),JJ. For the Appellants : Shri R K Grover, DR Shri Arshad Hidayatullah, Sr. Advs. For the Respondents : Shri K J Singh Ms. Surbhi Sinha, Advs. ORDER Per: Rakesh Kumar: The facts leading to filing of this appeal are, in brief, as under: 1.1 The respondents are manufacturers of beer. In the course of manufacture of beer, carbon dioxide arises as a by-product which was being stored by them in tanks and thereafter, liquefied. This carbon dioxide was being used by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had appeared. The Tribunal, however, vide final order no. 53685/2013 dated 9/5/2013 allowed the department's appeal following the Tribunal's judgment in the case of Artos Breweries Limited Vs. CCE-GUNTUR reported in 1992 (93) ELT 787 (Tribunal) . 1.5 Against the above order of the Tribunal, the respondent filed an appeal before Hon'ble Punjab Haryana High court. Hon'ble High Court vide order dated 14/10/2014 set aside the Tribunal's order dated 9/5/2013 and restored the appeal to the CESTAT subject to payment of cost of ₹ 20,000/-. The Hon'ble High Court by this order directed the appellant to appear before the Tribunal on 27/11/2014 and directed the Tribunal to decide this matter within period of 2 months from the date the Assessee put in appearance. Accordingly, this matter was heard for de-novo decision. 2. Heard both the sides. 3. Shri R.K. Grover, ld. DR, pleaded that the only issue point of dispute in this case is as to whether the carbon dioxide which is generated during fermentation process in the respondent's factory and which is stored by them after liquefaction and is subsequently used for carbonation of beer, would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE-GUNTUR reported in 1992 (93) ELT 787 (Tribunal); (Supra) and on basis of that judgment, the Tribunal had presumed that the carbon dioxide generated in the respondent's factory and the carbon dioxide purchased from outside was of the same character and hence, marketable; that this is not so In the present case, as the carbon dioxide purchased by the respondent from outside is that which has been manufactured by the carbon dioxide manufacturers; that there is difference between the carbon dioxide which is generated in the breweries and the carbon dioxide which is manufactured by the commercial manufacturers of this gas, as the carbon dioxide which comes into existence in the course of fermentation process in the breweries has impurities of methane and some alcohol and these impurities have to be removed by scrubbing process for which a separate plant has to be installed; that the respondent had not installed any such plant and hence, the carbon dioxide generated in their factory during fermentation could not be compared with the carbon dioxide available in the market; that it is well settled law that marketability of the goods in the form in which the same are cleared has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the course of fermentation process, of carbon dioxide is generated which is stored after liquefaction and is subsequently used for carbonation of beer. There is also no dispute that sometimes when the necessity arises, the respondent purchase carbon dioxide from other manufacturers of the carbon dioxide. The point of dispute is as to whether carbon dioxide which comes into existence in the respondent's unit is marketable and hence, excisable. In the case of Artos Breweries Limited Vs. CCE-GUNTUR reported in 1992 (93) ELT 787 (Tribunal) there was an identical point of dispute as to whether the carbon dioxide generated during the process of fermentation and which is subsequently used for the carbonation of beer by the assessee, is marketable and hence, chargeable to central excise duty. In that case, an assessee sometimes, was purchasing carbon dioxide gas from outside and on this basis, the Tribunal gave finding that the carbon dioxide generated in their factory is of the same character and properties as the carbon dioxide purchased from the outside and hence, the carbon dioxide generated in the factory and used captively would be marketable. However, the Tribunal in anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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