Customs, Excise and Gold Tribunal - Bangalore
M/S. Ammonia Marketing Co. (Bombay), ... vs The Commissioner Of Central Excise & ... on 26 June, 2001
Equivalent citations: 2001(133)ELT709(TRI-BANG)
ORDER
Shri G.A. Brahma Deva
1. After hearing for sometime with reference to the stay petition filed by the party, we find that the matter itself can be disposed of. Accordingly, the amount required to be deposited for the purpose of hearing the appeal is dispensed with and the appeal is taken for regular hearing.
2. The point to be considered in this case is whethr the activity of filling of ammonia from bulk tankers into smaller cylinders would amount to manufacture or not. It was brought to our notice that the very issue has already been considered by the Tribunal as per order no. 85/01-C dated 30.5.01, holding that the activity undertaken by the assessee does not amount to manufacture. In this connection, Sh. Shivdas, Ld. Advocate, appearing for the party drew our attention to para-5, 6 & 9 of the order. They are as under.
"5. Note 10 to Chapter 28 reads:-
In relation to products of this Chapter, labeling 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".
From the above chapter Note one can spell out the manufacturing process only if the activities mentioned therein are carried out. The activity mentioned therein when carried out are treated as manufacturing process. In such circumstances a legal fiction as to manufacture is to be presumed. The fiction incorporate in the note should have a restricted meaning only. In other words, for a manufacturing process to come into existence, by invoking this fiction, ingredients contained therein must be stricitly complied with. What are the ingredients that are to be satisfied to bring in a fiction of "manufacture" as per this Note? The first ingredient that is to be satisfied is labeling of container while repacking from bulk packs to retail packs. The second may be re-labelling of the container while repacking from bulk packs to retail packs. The third will be adoption of any other treatment to render the product marketable to the consumer. In the instant case, we can safely exclude the third option because the department has no case that the assessee adopted any treatment to render the product, Ammonia, marketable in the course of filling it into smaller container.
6. The department has nowhere alleged that the assessee in this case resorted to labelling or re-labelling the container while filling the Ammonia gas into smaller container. 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 tanke5s 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. When the facts of this case are analysed in the light of the above understanding of note 10 to Chapter 28, we are clear in our mind that the activity undertaken by the assessee namely filling of ammonia gas from bulk containers into smaller containers will not amount to manufacturing process. Since the activity is not a manufacturing process, no duty liability under the Centre Excise Act can be imposed on the assessee".
3. Since the issue has already been considered by the Tribunal in the case referred to above, following the same we accept the contention of the party and accordingly the appeal is allowed with consequential relief, if any.
(Pronounced and dictated in open court.)