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TMI Blog2002 (4) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... tated are that the appellant is a manufacturer of Acetylene, Oxygen, etc., amongst other gases and clears the same on payment of appropriate duty of excise. Helium is procured by the appellants from other manufacturers and sold under BOC brand name claimed as a part of its trading activity. The Revenue issued a show cause notice alleging that since they had affixed label of their own name and other particulars, therefore, in terms of Note 10 of Chapter 28, the legal fiction of manufacture is created. Their activity of affixing labels amounted to manufacture and called upon the appellants to explain as to why Central Excise duty amounting to Rs. 7,39,910/- should not be demanded from them and why a penalty should not be imposed. The Joint Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 10 of Chapter 28 of the Central Excise Tariff. He submits that the fact remains that the appellants affixed labels on their cylinders after getting them filled with Helium and other special gases. He reiterates the findings of the authorities below. 5. We have heard the rival submissions. We find that the entire issue revolved round the interpretation of Note 10 of Chapter 28 of Central Excise Tariff. Note 10 to Chapter 28 reads :- "In relation to products of this Chapter, labelling or re-labelling of containers and repacking from bulk packs to retail packs, or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture." We find that this Tribunal in the case of Ammonia Supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abelling of the container should take place at a time when the goods are packed from bulk packs to retail packs. The assessee was not getting Ammonia in bulk packs. They were getting it in tankers. Ammonia gas brought in tankers can never be termed as brought in bulk packs. So the assessee was not repacking the goods from bulk packs to retail packs. Accordingly, the activity undertaken by the assessee in filling the smaller container from bulk container namely tankers can never fall within the fiction of manufacture as envisaged by Note 10 quoted above." We further note that the Department had issued clarification in regard to packaging and its implication for the purposes of Note 10 to Chapter 28 of Central Excise Tariff. This has been b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on given by those authorities. They were having colour coated to the cylinders as they were to carry Ammonia. These activities of the manufacturer of cylinders cannot be taken as activity undertaken by the assessee." 6. In Para 8 of this order in the case of Ammonia Supply Co., this Tribunal observed as under : "8. In Note 10, labelling, re-labelling of the container along with repacking etc. are taken to form manufacturing process. The word labelling has got specific connotation in excise law. This can be seen from Notification No. 8/98-C.E., dt. 2-6-98 (General Exemption No. 1) dealing with small scale exemption. The word labelling was used in that Notification in the Explanation added to that Notification. A reading of that Explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners. As per Note quoted above, labelling or re-labelling of the container should take place at a time when the goods are packed from bulk packs to retail packs, the assessee was not getting Ammonia in bulk packs. They were getting it in tankers. Ammonia gas brought in tankers can never be termed as brought in bulk packs. So the assessee was not repacking the goods from bulk packs to retail packs. Accordingly, the activity undertaken by the assessee in filling the smaller container from bulk container namely tankers can never fall within the fiction of manufacture as envisaged by Note 10 quoted above." 9. Having regard to the above discussions and following the ratio of the judgment cited above, we allow the appeal, consequential relief, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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