Basf India Ltd. Vs. Commissioner of C. Ex.

1. this is an application for stay filed by the appellant for waiver of pre-deposit of rs. 20.52 lakhs approximately and penalty of rs. 20 lakhs for wrong availment of modvat credit. in the order impugned in the appeal the commissioner held that emptying of the drums was an activity of manufacture made by the appellant and he therefore confirmed the demand of duty of rs. 20.52 lakhs approximately and he also imposed a penalty of rs. 20 lakhs under rule 173q of the central excise rules.2. when the application was taken up for hearing, with the consent of both parties, we have taken up the appeal itself for disposal after waiving pre-deposit.3. the question involved in this appeal is whether emptying of drums by the appellant will amount to manufacture. this question is not res integra. it has been decided by this tribunal wrb in the case of castrol india ltd. v. c.c.e. -1998 (99) e.l.t. 234 that emptying of drums/barrels of its contents would not amount to manufacture. the tribunal while deciding the issue took note of decisions of the tribunal in other cases inter alia west coast industrial gases ltd. v.collector -1996 (83) e.l.t. 358.castrol india ltd. v.c.c.e. (supra), set aside the impugned order and allow the appeal. both appeal as well as stay petition are disposed of.