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TMI Blog2021 (8) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The decision of the Supreme Court in COMMR. OF C. EX., MUMBAI VERSUS BOC (I) LTD. [ 2008 (4) TMI 46 - SUPREME COURT] , where it was held that mere labeling or relabeling in the absence of any activity of repacking from bulk packs to retail packs would not render the product marketable directly to the consumer , would not be applicable in view of the subsequent decision of the Supreme Court in AIR LIQUIDE NORTH INDIA (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [ 2011 (8) TMI 93 - SUPREME COURT] and that the process undertaken by the appellant would amount to manufacture in view of the third requirement contained in Chapter Note 9 of Chapter 28 of the Tariff Act. Appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO. 41252-41264 of 2013, 41951 of 2014 and 41355 of 2015 - FINAL ORDER No. 41717-41731 / 2021 - Dated:- 4-8-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Ms. Radhika Chandrasekaran, Advocate for the Appellant Shri L. Nandakumar, Authorised Representative for the Respondent ORDER The issue involved in all the appeals is whether compression of carbondioxide received through pipelines a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. M/s. Popular Carbonic Pvt. Ltd.[the appellant ] is engaged in the process of compressing carbon dioxide falling under Chapter 28 of the Tariff Act and the compressed carbon dioxide is filled into cylinders brought by the customers. The appellant claims that it receives carbon dioxide from M/s. Madras Fertilizers Limited through pipelines on payment of applicable excise duty. The carbon dioxide undergoes two processes at the premises of the appellant namely (i) compression and filling up into cylinders as gas and (ii) compression to make the carbon dioxide in liquid form. 9. The Department issued 16 show cause notices covering the period of 2005-06 to 2013-14 proposing to levy excise duty on the ground that the activity undertaken by the appellant namely, compression of carbon dioxide and the subsequent filling into cylinders amounts to manufacture in terms of Chapter Note No. 9 to Chapter 28 of the Tariff Act. The show cause notices further alleged that the appellant was not entitled for the Small Scale Industry benefit in terms of Notification dated 01.03.2003 since the goods cleared by the appellant contain a brand name of some other person. The show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Air Liquide North India Pvt. Ltd. vs. Commissioner of C. Ex., Jaipur-I [ 2011 (271) E.L.T. 321(S.C.) ] and the amendment made in Chapter Note 9 of Chapter 28 of the Tariff Act on 01.03.2008, the process undertaken by the appellant would amount to manufacture. The Commissioner also observed that since carbondioxide gas was filled in cylinders which bore identification marks/names of the buyers, the appellant would not be entitled to claim exemption under the Notification dated 01.03.200. The demand was, therefore, confirmed with penalty and interest. Order dated 31.01.2013 15. The Commissioner held that the activity undertaken by the appellant would amount to manufacture and the relevant portion is reproduced below: Whether the above described activity of M/s. PCPL amounts to manufacture by a fiction of law: 4.2 Carbondioxide in liquid or gaseous state when packed from pipeline in bulk to retail packs after being subjected to certain treatment/process amounts to manufacture by virtue of gaining marketability after passing through the factory of production of the assessee in the aforesaid manner. The said canbondioxide gas attracts the fiction of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. What transpires from the records is that though the dispute as to whether compression of carbordioxide and the subsequent filling into cylinders would amount to manufacture was an issue raised in all the show cause notices for the period from 2005-06 to 2013-14, which notices are in issue in all the fifteen appeals, but subsequently a show cause notice dated 15.07.2015 was also issued to the appellant for the period March 2014 to April 2015 proposing a demand of ₹ 71,32,248/- as duty payable for the same reasons, namely that filling of gas received through pipelines into cylinders by compression amounts to manufacture in terms of the Chapter Note 9 of Chapter 28 of the Tariff Act. The Principal Commissioner, by order dated 21.07.2016, dropped the demand holding that the activity would not amount to manufacture. For arriving of this conclusion, the Principal Commissioner noted: a) The earlier order dated 29.09.2004 passed by the Deputy Commissioner confirming the demand, the order dated 11.04.2005 passed by the Commissioner (Appeals) setting aside the order passed by the Deputy Commissioner, the order dated 17.12.2019 of the Tribunal confirming the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee distinct activities listed in this provision. Labelling or relabeling of containers Repacking from bulk packs to retail packs Adoption of any other treatment to render the product marketable to the consumer Admittedly M/s PCPL have not undertaken any activity that could be construed as labelling, relabeling or repacking. 4.7 The Deputy Commissioner had held the activity of compression and filling into cylinders as adoption of any other treatment to render the product marketable to the consumer . The Commissioner (Appeals) however, had held that this activity amounts to 'packing' and consequently applying the ratio of the Tribunal order in the case of Ammonia Supply Co held that the same would not amount to manufacture. The Commissioner (Appeals) has also found that 'compression' does not amount to manufacture in respect of goods falling under chapter 28. These findings of the Commissioner (Appeals) have attained finality as his order has merged with the judgment of the Hon'ble Supreme Court. 4.9 The amendment to the chapter note with effect from 01-03-2008 substituted the word 'and' with the word ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lost sight of. It is not in dispute that whether the text of the earlier chapter note is considered or the amended text is considered the process carried out by M/s PCPL is sought to treated as manufacture only with reference to the residual activity referred of any other treatment to render the product marketable to the consumer . This statutory provision and the process undertaken by M/s PCPL having remained unaltered through the entire period of dispute I am unable to agree with the conclusion that the ratio of the Hon'ble Apex Court decision in their favour can be overlooked and the judgment in the case of Air Liquide North India Pvt. Ltd. applied to the facts of their case particularly when the facts relating to the process are distinguishable. The decision of the Hon'ble Apex Court rendered in their own case has become a binding precedent and in the absence of any change in either the facts or the law I find that it would be impermissible to take a contrary view. (emphasis supplied) 20. Ms. Radhika Chandrasekaran, learned counsel appearing for the appellant submitted that: (i) The issue is to whether the process of compressing carbondioxide and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that in view of the decision on Supreme Court Air Liquide North India Pvt. Ltd. The appellant cannot take the benefit of the decision would amount to manufacture. 22. The submissions advanced by learned counsel for the appellant and the learned Authorised Representative for the Department have been considered. 23. Before adverting to the main submission advanced by learned counsel for the appellant that in view of the subsequent decision of the Principal Commissioner holding that the process undertaken by the appellant would not amount to manufacture. It will be necessary to examine a decision concerning the relevant provisions of Chapter Note 9 of Chapter 28 of the Tariff Act. 24. In the case of the appellant, a Division Bench of the Tribunal in Popular Carbonic, relying upon the decision of the Supreme Court in BOC (I) Limited, upheld the decision of the Commissioner (Appeals) held that the process undertaken by the appellant would not amount to manufacture and the relevant portion of the decision is reproduce below: Heard both sides. The appellants received Carbon-di-oxide gas from M/s. Madras Fertilizers, through pipeline which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of C.E. ST, LTU Delhi [ Service Tax Appeal No. 57703 of 2013 dated on 25.11.2019 ] , had an occasion to examine this contention. It was held that when for a subsequent period in the own case of the appellant it was held that service tax cannot be levied, which order had attained finality, the Department cannot be permitted to take a stand that service tax is leviable. The relevant portion of the decision is reproduced below: 16. Learned Counsel for the Appellant, on instructions, has stated that the aforesaid order dated 31 December, 2015 of the Commissioner has also attained finality as the Department did not file any Appeal. 17. The submission of the learned Counsel for the Appellant is that in such circumstances, the Department cannot agitate that the Appellant is liable to pay Service Tax under BAS. To support this contention, learned Counsel has placed reliance upon a decision of Allahabad Bench of this Tribunal in Shri Niraj Prasad vs. CCE ST, Kanpur [ Service Tax Appeal No. 3834 of 2012 ] decided on 17 July, 2019. In the aforesaid case, it was sought to be submitted by the Appellant that the Department cannot be allowed to discriminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matters. Suffice it to say that each and every case has to be examined in the light of our above observations, and it is for the competent Central Excise Officers to come to correct decisions in consonance with the principles of uniformity, equity and justice. 4. It is difficult to understand the reasoning of the Tribunal. The least that the Tribunal could have done in the interest of uniformity was to call upon the Revenue Authorities to explain why they were making a distinction between the Appellants product and that of M/s. Chandulal K. Patel without subjecting the Appellants product to any chemical analysis. 5. In their Appeal from the decision of the Tribunal before us the Appellants have again raised the issue that the Tribunal should have considered the fact that the Appellants and Chandulal K. Patel Co s products were identical and were the outcome of an identical process, and that since the latter had been exempted from paying any central excise duty on the ground that their product was classifiable under Tariff Heading 24.04, the Appellants should get the same benefit. 6. At the hearing today we sought an explanation from the learned Counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attained finality. 14. In view of a catena of decisions of this Court, it is settled law that the department having accepted the principles laid down in the earlier case cannot be permitted to take a contra stand in the subsequent cases [See: Birla Corporation Ltd. v. CCE [2005 (186) E.L.T. 266 (S.C.)], Jayaswals Neco Ltd. v. CCE, Nagpur [2006 (195) E.L.T. 142 (S.C.)] etc.] 15. The point in issue being concluded by the decision of this Court in MRF case (supra) and the fact that the Revenue did not file an appeal against the order of the Tribunal in ICI India case (supra), we do not find any merit in these appeals and dismiss the same with no order as to costs. 30. The aforesaid decision dated 21.07.2016 of the Principal Commissioner clearly records a finding that the activity undertaken by the appellant would not amount to manufacture and this order of the Principal Commissioner has attained finality as the Department has not filed any appeal. 31. Thus, when both the contention raised by the learned Authorised Representative of the Department that the decision of the Supreme Court in BOC (I) limited would not be applicable in view of the subsequent decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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