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2020 ] HINDUSTAN PETROLEUM CORPORATION LTD. v. COMMR. OF C. EX., PATNA 141

8. We find that the facts in both the abovestated decisions pertaining to
the appellant company and in the instant case are exactly the same and involve
the self-same goods, i.e., blended MS/HSD sold under the same brand names.
Hence, these decisions fully apply to the instant case.
9. The distinction sought to be made by the Commissioner of the Tri-
bunal’s decision, being Order No. 668-680/08-Ex., dated September 2, 2008
passed in Hindustan Petroleum Corporation Limited v. CCE [2009 (234) E.L.T. 648
(T)] is erroneous and unsustainable. The said decision, the relevant part whereof
is set out hereinabove, fully applies to the instant case. The amendments made to
Exemption Notification No. 4/2006-C.E., dated March 1, 2006 by Notification No.
4/2008-C.E., dated March 1, 2008 does not make any difference. Notification No.
4/2006-C.E., prior to amendment, provided for levy of duty on MS and HSD at a
single rate, irrespective of whether or not they were being sold under a brand
name or otherwise. By the amendment Notification No. 4/2008-C.E. separate
rates have been provided for both MS and HSD which are intended for sale with
or without a brand name respectively, a higher rate being provided for sale of the
products under a brand name. This amendment in no manner whatsoever alters
the basic principles and tests laid down by the Apex Court, which have not been
satisfied in the instant case, for a particular process to be “manufacture” of excis-
able goods within the meaning of the Act, as detailed in the order dated Septem-
ber 2, 2008 of the Tribunal. The amended notification merely provides for two
different rates of excise duty for MS and HSD, one for unbranded and the other
for branded category. This does not and cannot mean that there is “manufacture”
of excisable goods within the meaning of the Act by branding of MS and HSD or
by addition of additives thereto. As such, merely because the aforesaid decision
of the Tribunal was delivered in respect of clearance prior to March 1, 2008, the
same cannot be said to be not applicable to the instant case.
10. As has been held in the aforestated decisions of the Tribunal, just
because blending improves their quality and after blending they are sold under
different brand names, the MS and HSD received from IOCL do not become
products different from unblended MS/HSD, with different characteristics and
usages. Their characteristics remain the same, as they both have to conform to ISI
specifications for unblended MS/HSD and their usage also remain the same. As
such, there being no “manufacture” within the meaning of the Act, no excise du-
ty is payable on the said blended MS/HSD.
11. The reliance by the Commissioner on the decision of this Bench of
the Tribunal in the case of Indian Oil Corporation Limited, being Order No. A-
324/Cal/01 dated May 24, 2001 is also misplaced. In the said case the SKO, be-
fore blending, did not meet the specifications of SKO on the illumination param-
eter and, therefore, SKO with better properties was imported and blended to
make the blended product meet the specifications. In the instant case, MS and
HSD even before the addition of the additive had met the specifications of MS
and HSD as per the required ISI specifications and were marketed as such.
Therefore, this order of the Tribunal in the case of SKO has no applicability to the
instant case.
12. Therefore, following the abovestated decisions of the Tribunal, we
hold that the impugned order of the Commissioner is unsustainable and is set
aside and the appeal of the appellant is allowed with consequential relief, if any.
(Operative part of order pronounced on 15-1-2019)
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