1999(05)LCX0088

IN THE CEGAT, COURT NO. III, NEW DELHI

S/Shri S.K. Bhatnagar, President, S.S. Kang, Member (J) and V.K. Agrawal, Member (T)

PAUSHAK LIMITED

Versus

COMMISSIONER OF CENTRAL EXCISE, VADODARA

Final Order No. 417/99-C, dated 25-5-1999 in Appeal No. E/1146/95-C

CASE CITED

Elson Machines Private Ltd. v. Collector — 1988(11)LCX0035 Eq 1988 (038) ELT 0571 (S.C.) — Relied on                      [Para 6]

Advocated By : None, for the Appellants.

Shri S.K. Das, JDR, for the Respondent.

[Order per : S.S. Kang, Member (J)]. - The appellants filed this appeal against the order-in-appeal passed by the Collector of Central Excise (Appeals), Ahmedabad. The appellants filed the written submissions and made a request to decide their case on merits.

2. In the impugned order, the Collector of Central Excise held that phosgene gas has extensive use and it can be stored and it has a shelf-life, hence it is marketable and liable to Central Excise duty.

3. The appellants, in their written submissions, relied upon the earlier order passed by the Collector of Customs and Central Excise in which the Collector of Central Excise held that phosgene gas is not “goods” and hence not chargeable to duty. Their submissions is that once the gas in question was held to be not “goods” and not chargeable to duty subsequently the Revenue cannot hold contrary to this finding.

4. Learned SDR, appearing on behalf of the respondents, submits that the issue in present appeal relates to the approval of classification list w.e.f. 25-10-1991. He submits that the Collector of Central Excise in the impugned order after relying on the Technical Literature held that the phosgene gas is a goods and chargeable to Central Excise duty. He submits that these findings were not challenged by the appellants. He, therefore, prays that the appeal be dismissed.

5. Heard the learned JDR and perused the written submissions filed by the appellants. In this case the dispute is regarding classification of phosgene gas. The contention of the appellants is that gases are not ‘goods’. Therefore, not liable to pay any Central Excise duty.

6. The appellants are relying upon the earlier order-in-appeal. It is settled law that Excise Authorities are not estopped from taking a view different than in the approved Classification List as held by the Hon’ble Supreme Court in the case of Elson Machines Pvt. Ltd. v. Collector of Central Excise, reported in 1988(11)LCX0035 Eq 1988 (038) ELT 0571 (S.C.). Therefore, we find no merit in the plea of the appellants that Revenue cannot take a different view on the Classification of the goods while approving subsequent classification list.

7. In respect of marketability the Collector of Central Excise in the impugned order held as :-

“I have examined the grounds put forward in the application. In the write-up appearing in Kirk-Othmer’s Encyclopedia of Chemical Technology, (Third Edition Vol. 17, pages 416 to 425) the properties, method of manufacture, storage and handling of phosgene gas have been set out in details. This write-up states that phosgene is an important and widely used intermediate. It finds extensive use in preparation of isocyanates which are used in the preparation of polyurethanes, in the manufacture of polycarbonates, and in the synthesis of chloroformates and carbonates which are used as intermediates in the synthesis of pharmaceuticals and pesticides. It can be employed in a variety of metal-recovery operations and can be used directly in the preparation of polymers. Various methods of manufacture of the gas, including the process through reduction of carbon dioxide over coal, are mentioned. The write-up states that being a highly toxic gas, it is transported in steel cylinders which have to conform to rigid safety design specifications. It also mentions that the gas is shipped in 68 and 907 kgs quantities. The various uses of the gas, its chemical & physical properties as also its chemical formula have also been described in the Hawley’s Condensed Chemical Dictionary, which has been mentioned in the application.

It is clear from the above, that the gas has extensive commercial use, that it can be stored and that it has a shelf-life. The fact that it is specifically mentioned in HSN, indicates that it is an item of import and export in international trade. The goods are, therefore, marketable. It is covered under Chapter 28 of the Central Excise Tariff.”

8. These findings of the fact was not controverted by the appellants in their appeal memorandum or in their written submissions.

9. In view of the above discussion, we find no merit in the appeal and the same is rejected.

Equivalent 2000 (116) ELT 251 (Tribunal)