9911796707
TMI Blog2024 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... tment viz. statement of Mr. M. Dhananjay, Manager of M/s. Somu Solvents (P) Ltd. who are engaged in the manufacture of Glycol ether acetates and other solvents. It is stated that they purchased Zero Air from the appellant and categorically stated that the said Zero Air contains 78% of Nitrogen, 20.8% of Oxygen and 1.2% of Argon and they do not use the same as Compressed Air in or in relation testing their manufacture of their finished products, since Compressed Air cannot be used in Gas Chromatograph test; besides, composition of Compressed Air is not of required standard for Gas Chromatograph test. Further it is stated by him that there is no difference between Synthetic Air and Zero Air as both are one and the same. In his statement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant as they were clearing synthetic air as zero air without payment of duty by misclassifying the same under Chapter Sub-heading 28510030 of CETA, 1985. Consequently, the officers visited their premises on 26.10.2007 and retrieved the records from the premises. On completion of investigation, a show-cause notice was issued to them on 02.01.2008 demanding duty of Rs.5,90,310/- for the period December 2002 to June 2007 on the quantity of Zero Air cleared from their factory without payment of duty along with interest and penalty. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, they filed appeal before the learned Commissioner(Appeals) who in turn rejected their appeal. Hence, the present app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of mixing the Nitrogen and Oxygen, it contains negligible traces of Argon. 3.1 Further, he has submitted that the distinction between Zero air and Synthetic air depends on the process of manufacture and since Zero air is obtained from the natural air by way of compression and removal of Carbon di-Oxide, moisture, dust into pure air; the same was classified by the appellant as compressed gas following the decision of the Tribunal in the case of Indian oxygen Limited Vs. CCE, Bolpur [2000(118) ELT 120 (Tri. Kolkata)] which has been later upheld by the Hon ble Supreme Court. Further, he has submitted that the difference between these two products is that Zero air contains Argon as is available in natural air whereas Synthetic air contains t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared by the appellant during the period December 2002 to June 2007 is classifiable under Chapter heading 2851 as compressed air attracting NIL rate of duty or classifiable under Chapter heading 2804 attracting 16% duty as confirmed in the impugned order. 7. Undisputedly the appellants are engaged in the manufacture of various gases like Oxygen, medical Oxygen, Nitrogen, Liquid Nitrogen, Hydrogen, Synthetic gas, Zero Air, Argon etc. The Department disputed the clearance of Zero Air during the relevant period alleging that the appellant cleared the same to various customers misdeclaring its classification under Chapter heading 2851 whereas the same being Synthetic Air having a distinct use in laboratories for which compressed air cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be used in Gas Chromatograph test; besides, composition of Compressed Air is not of required standard for Gas Chromatograph test. Further it is stated by him that there is no difference between Synthetic Air and Zero Air as both are one and the same. In his statement dated 07.11.2007, Mr. Devendra Kumar, Scientist of M/s. EID Parry (India) Limited, Bangalore has also categorically disclosed that they purchased Zero Air from the appellant and the same is used for Gas Chromatograph test by them, to which Compressed Air cannot be a substitute. Therefore, even though the process of manufacture of Zero Air and Compressed Air are different, the above statements which remained unchallenged and no cross-examination has been requested by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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