LawforAll

advocatemmmohan

My photo
since 1985 practicing as advocate in both civil & criminal laws

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE

Wednesday, August 31, 2011

The issue which falls for consideration in the present appeal is whether the treatment given or the process undertaken by the appellant to Helium gas purchased by it from the open market would amount to manufacture, rendering the goods liable to duty under Chapter Note 10 of Chapter 28 of the Central Excise Tariff Act, 1985 (hereinafter referred to as `the Act'). Chapter Note 10 of Chapter 28 of the Act, in relation to `manufacture', reads as under: "10. In relation to products of this chapter, labelling or relabelling of containers and repacking from bulk packs to retail packs or adoption of any other treatment to render the product marketable to the consumer shall amount to manufacture."



                                        1



                                                                      REPORTABLE


                IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


                    CIVIL APPEAL NO. 43  OF 2005




M/S. AIR LIQUIDE NORTH INDIA

PVT. LTD.                                               .....APPELLANT.


                                  VERSUS


COMMISSIONER, CENTRAL EXCISE,

JAIPUR-I                                                  .....RESPONDENT.





                              J U D G M E N T




ANIL R. DAVE, J.



1.    This appeal has been filed against the Judgment and Order dated 31.8.2004


passed in Final  Order No 595/2004-NB(C) by the Customs, Excise & Service Tax


Appellate Tribunal, New Delhi   in Appeal No. E/247/2004-NB(C),   whereby the


Tribunal  has allowed the appeal filed by the Department and reversed the findings


of the Commissioner(Appeals).


                                                  2



2.       The issue which falls for consideration in the present appeal is whether the


treatment   given   or   the   process   undertaken   by   the   appellant   to   Helium   gas


purchased by it from the open market would amount to manufacture,  rendering the


goods liable to duty under Chapter Note 10 of Chapter 28 of the Central  Excise


Tariff Act, 1985 (hereinafter referred to as `the Act').  Chapter Note 10 of Chapter


28 of the Act,  in relation to `manufacture', reads as under:




                "10.    In   relation   to   products   of   this   chapter,   labelling   or

                relabelling of containers and repacking from bulk packs to retail

                packs or adoption of any other treatment to render the product

                marketable to the consumer shall amount to manufacture."


In order to answer the aforesaid issue which arises for our consideration, it would


be necessary to set out some facts giving rise to the present appeal.  The appellant


is   engaged   in   the   manufacture   of   Oxygen,   Nitrogen,   Carbon-di-oxide   and   other


gases   classifiable   under   Chapter   28   of   the   Act.   The   appellant   had   purchased


Helium  gas  during  the  period   commencing  from December,  1998 to  31st  March,


2001, from the market in bulk and repacked the same into smaller cylinders after


giving   different   grades   to   it   and   then   sold   the   same   in   the   open   market.   The


appellant   purchased   the   said   gas   for   Rs.520/-   per   Cum.   Various   tests   were


conducted on the gas so purchased and on the basis of the tests and some treatment


given, the gas was segregated into different grades having distinct properties and


sold at different rates to different customers.


                                                   3



3.      The   adjudicating   authorities   held   that   these   processes   undertaken   by   the


appellants amounted to manufacture and consequently confirmed the demand with


penalty. An appeal filed by the appellant before the Commissioner (Appeals) was


allowed.   Thereafter,   an appeal was filed by the   Department before the Tribunal


and the Tribunal, by its impugned judgment held that the process undertaken or the


treatment given by the appellant amounted to "manufacture"   in terms of Chapter


Note   10   of   Chapter   28   of   the   Act.   The   aforesaid   conclusion   arrived   at   by   the


Tribunal is under challenge in this appeal.




4.      On behalf of the appellant it was vehemently argued that the appellant had


only   conducted   various   tests   like   moisture   test,   etc.   to   determine   quality   and


quantity of Helium gas in the cylinders.  It was further submitted that even after the


activity   of   testing,   Helium   gas   remained   as   Helium   gas   only   and   there   was   no


change in the chemical or physical properties.  No new product,  other than Helium


gas   came   into   existence   and,   therefore,   it   cannot   be   said   that   the   appellant   had


carried on any manufacturing activity.




5.      It was further submitted that the gas, when purchased by the appellant, was


already marketable and, therefore,   it cannot be said that the testing of the gas by


the   appellant   had   rendered   the   product   marketable.     In   the   circumstances,     the


process   of   testing   cannot   be   said   to   be   a   manufacturing   process,   rendering   the


                                                    4



product   marketable.     It   was   also   submitted   that   the   crucial   requirement   for   the


application of the last portion of Chapter Note 10 of Chapter 28 of the Act is that


by   adoption   of   some   treatment,   the   product   should   become   marketable   to   the


consumer.     According   to   the   learned   counsel,   the   product,   i.e.   Helium   gas   was


already   in   a   marketable   state   when   it   was   purchased   by   the   appellant   and,


therefore, it cannot be said that the appellant made it marketable.   To substantiate


his   claim,   the   learned   counsel   for   the   appellant     relied   on   the   cases   of  CCE  v.


LUPIN LABORATORIES  2004 (166) A116 (SC) and LAKME LEVER LTD.  v.


CCE  2001 (127) ELT 790 (T).




6.      The learned counsel for the appellant brought to our attention  a decision of


this Court rendered in the case of  BOC (I) Ltd. v.  CCE  2003 (160) ELT 864  to


substantiate his claim that the issuance of certificate along with the cylinder at the


time of sale does not amount to re-labelling.  He also contended that as there was


no suppression of facts of any sort on the part of the appellant, extended period of


limitation could not have been  invoked in the present case.




7.      Per contra, the learned counsel for the respondent submitted that the testing


of Helium gas comes under the category of "treatment" as mentioned in Chapter


Note 10 of Chapter 28 of the Act and that the Tribunal has clearly given a finding


to that effect.   He also submitted that issuance of a separate certificate along with


                                                          5



cylinder   at   the   time   of   sale   containing   all   the   details   regarding   moisture,


purification, etc.  amounted to re-labelling of the gas cylinders.  He also submitted


that the revenue authorities were fully justified in invoking the extended period of


limitation as there had been willful suppression of facts on the part of the appellant


with an intent to evade payment of duty.




8.            We have heard the learned counsel for the parties and perused the records. In


view   of   Chapter   Note   10   to   Chapter   28   of   the   Act,     the   manufacturing   activity


would mean either;




       (a)        Labelling or re-labelling of containers and repacking from bulk packs to


                  retail packs;  OR


       (b)        An adoption of any other treatment to render the product marketable to


                  the consumer.




9.            Thus,   either   an   activity   of   labelling   or   relabelling   of   containers   and


repacking from bulk packs to retail packs OR adoption of any treatment so as to


render the product marketable to the consumer would amount to "manufacture".




10.           It   is   not   in   dispute   that   the   appellant   had   purchased   Helium   gas   from   the


open   market   and   that   its   quality   control   officer   had   conducted   various   tests   and


issued analysis report/quality test report stating the results of the tests carried out.


                                                    6



It is also not in dispute that the appellant issued  certificates of quality at the time


of sale on the basis of tests carried out by it to the effect that the gas supplied by it


confirmed a level of purity and specifications in conformation with the orders of


the customers. Another undisputed fact is that the appellant had purchased  Helium


gas   under   a   generic   description   but   after   the   tests   and   analysis,   it   was   sold   to


different customers based on their specific requirements at profit margin ranging


from 40% to 60%  in different cylinders.




11.     It is pertinent to note that when the appellant was asked about the process


which was being carried out on Helium gas before selling it to its customers, the


representative   of   the   appellant   had   refused   to   give   any   detail   with   regard   to   the


process because, according to him, that process was a trade secret and he would


not like to reveal the same.   Thus,   the respondent or his subordinate authorities


were   not   informed   as   to   what   was   being   done   by   the   appellant   to   Helium   gas


purchased or what treatment was given to the said gas before selling the same to


different   customers   at   different   rates   with   different   certifications   in   different


containers/cylinders.  It is also pertinent to note that the gas which was purchased


at the rate of about Rs.520/- per Cum. was sold by the appellant at three different


rates namely Rs.700/-, Rs.826/- and Rs.1000/- per Cum. and thereby the appellant


used to get 40% to 60% profit.


                                                     7



12.     From the above undisputed facts, it is clear that the gas cylinders were not


sold as such but they were sold only after certain tests or processes as specified by


the customers of the appellant.   It is also clear that only after the analysis and tests,


it could be ascertained as to whom the gas was to be supplied and at what rate. The


various tests resulted into categorization  of the gas into different  grades  namely,


Helium label 4, high purity Helium and Helium of technical grade. Helium label 4


was sold at higher rate as it matched superior standards.




13.     In the instant case,  Helium gas was having different marketability,  which it


did   not   possess   earlier   and   hence   the   gas   sold   by   the   appellant   was   a     distinct


commercial commodity in the trade, rendering it liable to duty under Chapter Note


10   of   Chapter   28   of   the   Act.       If   the   product/commodity,   after   some   process   is


undertaken or treatment is given, assumes a distinct marketability,   different than


its   original   marketability,     then   it   can   be   said     that   such   process   undertaken   or


treatment   given   to   confer   such   distinct   marketability   would   amount   to


"manufacture" in terms of Chapter note 10 to Chapter 28 of the Act.




14.     The only conclusion from the above is that the tests and "process" conducted


by   the   appellant   would   amount   to   "treatment"   in   terms   of   Chapter   Note   10   of


Chapter   28   of   the   Act.     The   fact   that   the   gas   was   not   sold   as   such   is   further


established from the fact that the gas,   after the tests and treatment, was sold at a


                                                 8



profit of 40% to 60%.  If it was really being sold as such, then the customers of the


appellants   could   have   purchased   the   same   from   the   appellant's   suppliers.   When


this question was put to the officer of the appellant,  he could not offer any cogent


answer but merely stated that it was the customers' preference.  Further, he did not


give proper answer as to how the profit margin was so high.   The appellant  had


supplied   the   gas   not   as   such   and   under   the   grade   and   style   of   the   original


manufacturer but under its own grade and standard. Further, while selling the gas,


different   cylinders   were   given   separate   certificates   with   regard   to   the   pressure,


moisture, purification and quality of the gas. This explains the high price at which


the appellant was selling the gas.




15.    Therefore,   in   our   opinion,   the   Tribunal   has   rightly   observed   that   if   no


treatment   was   given   to   the   gas   purchased   by   the   appellant,   customers   of   the


appellant   would   not   have   been   purchasing   Helium   from   the   appellant   at   a   price


40%  to 60% above the price at which the appellant was purchasing.




16.    As stated hereinabove, it is clear that the appellant was purchasing Helium at


the rate of Rs.520/- per Cum. and was selling the same after adding 40% to 60%


profit.     Further,   the   gas   was   segregated   in   different   cylinders   with   different


properties and,  therefore,  the rate at which the gas was purchased by the appellant


and the rate at  which it was sold to its customers was substantially different.


                                                   9



17.     In the circumstances,   it cannot be said that no treatment was given to the


gas   purchased by the appellant.   For the said reasons, it cannot be said that the


appellant was not carrying out any manufacturing activity within the meaning of


Chapter Note 10 of Chapter 28 of the Act.




18.     It is also pertinent to elucidate on the phrase "marketable to the consumer".


The word "consumer" in this clause refers to the person who purchases the product


for   his   consumption,   as   distinct   from   a   purchaser   who   trades   in   it.   The


marketability of the product to "the purchaser trading in it" is distinguishable from


the   marketability   of   the   product   to   "the   purchaser   purchasing   the   same   for   final


consumption" as in the latter case, the person purchases the product for his own


consumption   and   in  that   case,   he   expects   the   product   to   be  suitable   for   his   own


purpose and the consumer might purchase a product  having  marketability,  which


it did not possess earlier.




19.       Therefore, the phrase "marketable to the consumer" would naturally mean


the marketability of the product to "the person who purchases the product for his


own consumption".  Hence, the argument of the appellant that as the product was


already marketable, the provisions of Chapter Note 10   of Chapter 28 of the Act


would not be attracted,  will have to be rejected.


                                                  1



 20.    For the aforetasted reasons, we agree with the Tribunal in holding that the


appellant   is   liable   to   pay   excise   duty   for   the   reason   that   it   has   manufactured


Helium   within   the   meaning   of   the   term   `manufacture'   as   explained   in   terms   of


Chapter Note 10 of Chapter 28 of the Act.




21.     So   far   as   the   issue   with   regard   to   relabelling   is   concerned,   we   are   in


agreement   with   the   view   expressed   by   the   Tribunal   that   relabelling   would   not


mean   mere   fixing   of   another   label.     When   the   appellant   was   selling   different


cylinders with different marking or different certificates to its different customers,


we   can   say   that   the   appellant   was   virtually   giving   different   marks   or   different


labels to different cylinders having different quality and quantity of gas.




22.     It can be very well said that the Helium purchased by the appellant was in a


marketable   state   but   it   is   equally   true   that   by   giving   different   treatment   and


purifying the gas, the appellant was manufacturing a commercially  different type


of gas or a new type of commodity which would suit a particular purpose.   Thus,


the treatment given by the appellant to the gas sold by it would make a different


commercial   product   and,   therefore,   it   can   surely   be   said   that   the   appellant   was


engaged in  a manufacturing activity.




23.     So   far   as   the   issue   with   regard   to   limitation   is   concerned,   we   are   in


agreement   with   the   findings   arrived   at   by   the   Tribunal   to   the   effect   that   the


                                                         1



appellant did not disclose details about the activities or treatment given to the gas


by the appellant.  No duty was ever paid by the appellant on the Helium sold by it


after giving some treatment so as to make it a different commercial product.  We,


therefore,   do   not   see   any   reason   to   interfere   with   the   finding   with   regard   to


limitation also.




24.       For   the   reasons   stated   hereinabove,   we   are   in   agreement   with   the   order


passed by the Tribunal and dismiss the appeal but without any order as to costs.





                                                              ................................................J.

                                                              (Dr. MUKUNDAKAM SHARMA)





                                                                ....................................................J.

                                                                        (ANIL R. DAVE)

New Delhi

August   30,  2011.