By TIOL News Service

NEW DELHI, SEPT 01, 2011: THE issue 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."

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.

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 - 2004- TIOL -796- CESTAT -MUM 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 before the Supreme Court in this appeal.

The Supreme Court noted that 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".

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.

The Supreme Court observed that 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.

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.

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 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.

Therefore, 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.

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.

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.

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.

The Supreme Court agreed 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.

So far as the issue with regard to relabelling is concerned, Supreme Court was 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, the appellant was virtually giving different marks or different labels to different cylinders having different quality and quantity of gas.

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.

On limitation, the Supreme Court was in agreement with the findings arrived at by the Tribunal to the effect that the 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. Supreme Court did not see any reason to interfere with the finding with regard to limitation also.

Appeal Dismissed.

(See 2011-TIOL-86-SC-CX in 'Excise')