Per G.R. Sharma :

The short point for determination in this appeal is whether the appellants by affixing its own label on its own cylinders containing Helium Gas manufactured and filled by M/s. Pure Helium India Pvt. Ltd. into empty gas cylinders of BOC would amount to manufacture and attract levy of duty of excise in terms of Note 10 of Chapter 28 of Central Excise Tariff.

2. The facts of the case briefly stated are that the appellant is a manufacturer of Acetylene, Oxygen etc. amongst other gases and clears the same on payment of appropriate duty of excise. Helium is procured by the appellants from other manufacturers and sold under BOC brand name claimed as a part of its trading activity. The Revenue issued a show-cause notice alleging that since they had affixed label of there own name and other particulars, therefore, in terms of Note 10 of Chapter 28, the legal fiction of manufacture is created. Their activity of affixing labels amounted to manufacture and called upon the appellants to explain as to why Central Excuse duty amounting to Rs. 7,39,910/- should not be demanded from them and why a penalty should not be imposed. The Joint Commissioner adjudicating the case confi