Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Ammonia Supply Co on 30 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.E/461/04 (Arising out of Order-in-Appeal No.PD/105/TH-II/2003 dated 30/09/2003 passed by Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Commissioner of Central Excise, Appellant Thane Vs. Ammonia Supply Co. Respondent Appearance:
Shri.Y.K. Agarwal, SDR for appellant None for respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical) Date of Hearing : 30/06/2011 Date of Decision : 30/06/2011 ORDER NO Per: P. R. Chandrasekharan
1. This appeal is directed against the order-in-appeal No. PD/105/TH-II/2003 dated 30/09/2003 passed by the Commissioner of Central Excise (Appeals), Mumbai-VI.
2. The facts of the case, in brief, are as follows:
2.1 M/s.Ammonia Supply Co., Thane, are the manufacturers of Liquor Ammonia falling under Chapter 28 of the CETA 1985. In addition to manufacture, they are also engaged in the activity of offloading ammonia from bulk tankers and filling the same in retail cylinders/containers. The department felt that the above activity amounts to manufacture in terms of Chapter Note 10 to Chapter 28 and accordingly, demanded a duty of Rs.4,33,665/- vide notice dated 31/12/2001. The case was adjudicated by the jurisdictional Assistant Commissioner, who vide order dated 21/05/2002 came to the conclusion that the activity undertaken by the assessee does not amount to manufacture as defined in note 10 to Chapter 28 and, accordingly dropped the proceedings. On appeal by the department before the Commissioner (Appeals), the matter was again considered and the Commissioner (Appeals) vide the impugned order upheld the order of the lower adjudicating authority and rejected the departmental appeal. The department is in appeal before us against the impugned order.
2.2 The only ground taken in the appeal memorandum is that note 10 to Chapter 28 provides that labeling or re-labeling of containers or 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 in relation to products of Chapter 28. Since the ammonia is unloaded from the tankers and filled into cylinders/retail containers, the said activity amounts to manufacture in terms of the Chapter note mentioned above.
3. The Ld. DR appearing for the department reiterates the submissions made in the grounds of appeal. None appeared for the respondent.
5. We have carefully considered the matter.
6. In the instant case there is no labelling or re-labeling involved nor any activity to render the product marketable is undertaken. Ammonia is received in tankers and they have been filled into cylinders. Tankers cannot be considered to be packages and, therefore, filling them into cylinders cannot amounts to re-packing. In a similar case, this Tribunal in the case of Ammonia Marketing Co. Vs. CCE, Bangalore reported in 2001 (133) ELT 709 held that filling of ammonia gas from bulk tankers into smaller cylinders would not amount to manufacture and therefore, no duty liability under the Central Excise Act is attracted.
7. The ratio of the said judgement applies squarely to the facts of the present case. Therefore, we do not find any merit in the appeal and accordingly, dismiss the same.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 2