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TMI Blog2003 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... illing in cylinders medical and industrial grade oxygen and argon. The process was being treated as one of manufacture. The assessee paid duty on the cylinders that it filled with liquefied gas and utilised as credit duty paid on the gases that it received. Notice issued to it proposed to recover credit taken on quantities of these gases which escaped into the atmosphere during the process of fill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that oxygen lost during filling of cylinder is not waste. The ground in the appeal, that this order of the Tribunal has not been accepted is itself totally unacceptable. The Commissioner does not have any option not to act upon the decision of the Tribunal merely because an appeal has been filed against it. It has not been shown that the order of the Tribunal has been set aside. That alone shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t waste covered by provision of Rule 57D. He said that Rule 57D only applies to waste, residue and by-product that has physical existence and will not apply to goods which are lost by means of spillage or evaporation. 4. With great respect it is difficult to comprehend this distinction. Goods which are lost to their owner on account of spillage and evaporation are clearly continued to exist. Milk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave physical existence even though evaporation are covered by Rule 57D. The decision in Rajiv & Co. and Guljag Chemicals are in fact per incurim judgment of the Allahabad High Court in Varuna Sulphonators Pvt. Ltd. v. U.O.I., 1993 (68) E.L.T. 42. In that judgment a Bench of the High Court has held that credit of the duty paid on entire quantity of sulphuric acid used by the assessee would be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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