ORDER
Archana Wadhwa, Member (J)
1. The prayer in all the three Stay Petitions involving the same issue is to dispense with the condition of pre-deposit of the total duty amount of Rs. 2,05,216.00 (Rupees two lakh five thousand two hundred and sixteen) and the total penalty of Rs. 1.00 lakhs (Rupees one lakh) imposed upon the applicant/appellant-company herein, by denying them the benefit of Notification No. 67/95-C.E., dated 16-3-1995. The said notification allows the benefit to the inputs which are used captively in the further manufacture of the final product. The same has been denied in respect of the Gases which are allowed to escape in the atmosphere by flushing and cleaning the pipelines, when the new gas is to be produced. The applicants’/appellants’ contention is that such flushing of the gas in the atmosphere amounts to use of the same captively inasmuch as it is out of the technical necessity that such gases are required to be flushed out before a new type of gas starts being manufactured by them. As such, they have contended that the benefit of the Notification No. 67/95 is available to them. Shri B.J. Mookherjee, learned Advocate appearing for the applicants/appellants has also placed reliance upon the Tribunal’s decision in the case of Kanoria Chemicals & Industries Limited v. C.C. Ex., Allahabad reported in 1998 (29) RLT 901 (CEGAT). In support of his above submission, he has also drawn our attention to the Board’s Circular No. 246/80/96-CX., dated 1-1-1996.
2. Countering the arguments, Shri N.K. Mishra, learned J.D.R., for the Revenue has relied upon the observations made by the Commissioner (Appeals) vide which it was held that flushing out of the previous gas in the atmosphere does not amount to use of the same captively. The appellate authority has observed that inasmuch as the said gas was itself a final product used in maintenance/cleaning of the equipment of cylinders, the same cannot be held to be used captively.
3. In his rejoinder, Shri Mookherjee, learned Advocate, for the applicants/appellants, meeting the above argument, submits that the applicants’/appellants’ final product is the gas filled in cylinders and as such, the appellate authority was not justified in observing that the oxygen gas, which is allowed to escape in the atmosphere is the final product itself.
4. We have considered the submissions of both sides. Notification No. 67/95-C.E. extends the exemption in respect of the products which are used captively in the manufacture of the other final products in the applicants ‘appellants’ factory. The gas which is allowed to escape in the atmosphere is not further used in the manufacture of any other item. The applicants’/appellants’ contention that the said escape of the gas in the atmosphere amounts to captive consumption of the same in the further manufacture of the gas filled in the cylinder, prima facie does not appeal to us. We find that the ratio of the Tribunal’s decision in the case of Kanoria Chemicals & Industries Limited v. C.C. Ex., Allahabad (supra) was in different set of facts and circumstances. The Board’s Circular relied upon by the applicants/appellants is also not prima facie applicable, as rightly observed by the Commissioner (Appeals), inasmuch as the same deals with the gases produced by a manufacturer, which escape in the atmosphere by flaring system or otherwise. We note that the applicant/appellant-company has not pleaded any financial hardship. In these circumstances, we direct the applicants/appellants to deposit an amount of Rs. 1.00 lakh (Rupees one lakh) towards duty within a period of six weeks from today. Subject to deposit of the above amount, the balance amount of duty and penalty shall stand waived and its recovery stayed during the pendency of the appeals.
Matters to come up for ascertaining compliance and for final disposal of the appeals on 24-11-2003.