Full Judgment
2. The contention of the appellant is that this process of blowing is not part of the manufacturing process of gas. In fact this process relating to the packing material i.e. in respect of cylinder in which the gas is filled. The appellants are manufacturing oxygen gas and same were cleared in the cylinders. The cylinders are durable and returnable. On receipt of the empty cylinders in their factory, the appellant were undertaking the process of blowing for clearing the empty cylinders so that no other residual of gas remains in the cylinder. This process is undertaken to prevent any chemical reaction of the oxygen gas to be filled in the cylinders with the residual gases contained in the empty cylinders. The appellant relied upon the decision of the Hon'ble Supreme Court in the case of Vijayawada Bottling Co. Ltd. v. CCE, Guntur 3. The contention of the Revenue is that they were charging the blowing charges from the customers and the process of blowing is part of the manufacturing process of the gas.
4. We find that in this case the issue is in respect of the blowing charges received by the appellant in respect of blowing process undertaken in empty cylinders. It is admitted fact that empty cylinders received in the factory were subject to the blowing/purging to remove the impurities from cylinders as the cylinders are used by various manufacturer of other gases also. The appellant also produced ISI Specification in respect of gases where it was mentioned that all cylinders received with or without residual gas either purged or evacuated at the filling plant before filling the oxygen gas. It was specifically mentioned that flushing shall be carried out for all medical oxygen cylinders whether empty or containing residual gas prior to filling of the gas.
5. In the case of Vijayawada Bottling Co. Ltd. (supra) relied upon by the appellant, the amount spent, on cleaning of empty bottles which are to be used for filling the aerated water was held to be not assessable.
Hon'ble Supreme Court held as under : "6. The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is no dispute that the bottles are durable and returnable containers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to be treated as part of the process of packing and not as part of the manufacturing process of aerated water. The position is not very different from that in the case of Century Spg. & Mfg. Ltd. (supra) where the durable and returnable containers were used again for supply of gas and it was held that charges for maintenance and repairs of such containers were not includible in the assessable value of the gas.
We are, therefore, unable to uphold the view of the majority in the Tribunal that the service charges claimed by the appellant have to be included in the assessable value".
6. We find that the ratio of the above decision of the Hon'ble Supreme Court is applicable to the facts and circumstances of the present case, therefore, the appellants are entitled for abatement in respect of blowing/purging charges. The impugned order is set aside and the appeals are allowed. However, the actual abatement is to be given by the proper authority after going through the cost data supplied by the appellant after affording an opportunity of hearing to the appellant.
Appeals are disposed of as above.