Customs, Excise and Gold Tribunal - Delhi
Sarveshwari Gases (P) Ltd. vs Collector Of Central Excise on 21 April, 1986
Equivalent citations: 1986(8)ECR299(TRI.-DELHI), 1986(25)ELT186(TRI-DEL)
ORDER K.L. Rekhi, Member (T)
1. The appellants cleared compressed oxygen gas. The gas was packed in cylinders belonging to the customers. The lower authorities have held that cost of the cylinder is includible in the assessable value of gas for the purposes of assessment of central excise duty and have confirmed the demand for differential central excise duty on that basis. The appellants are contesting the demand. According to them, they sold only the gas and have, consequently, charged nothing by way of price for the cylinder. The appellants relied on the earlier ruling of the Government of India reported at 1982 E.L.T. 472 (G.O.I., F.B.) and the recently reported Bombay High Court judgment at 1986 (23) E.L.T. 394 (Bom.), Govind Pay Oxygen Ltd. v. Assistant Collector Central Excise, Panaji and Ors.
2. The learned representative of the department stated that though the facts and issues involved in the appellants' case are identical with those in the Government of India ruling and the Bombay High Court judgment relied upon by the appellants, there is a contrary judgment of Tribunal in Order No. 473/84-A dated 21-6-1984 (Appeal No. E.329/81-A) - Collector of Central Excise, Guntur v. Hindustan Polymers Ltd., Vishakhapatnam. He reiterated the department's two main arguments, namely, that' Section 4(4)(d) allowed for deduction of durable and returnable containers belonging to the manufacturer (and not to the customer) and that exemption notification No. 313/77-CE dated 8-11-1977 did not cover gas cylinders prior to 28-3-1979. In response to a specific query from the Bench, the learned representative of the department, stated that the Bombay High Court judgment was not before the Tribunal's Bench which passed the aforesaid order dated 21-6-1984. In response to another query from the Bench, he stated that to his knowledge there was no judgment of any other High Court or of the Supreme Court which was contrary to the Bombay High Court judgment relied on by the appellants.
3. We have carefully considered the matter. We find that the arguments raised before us by the learned representative of the department are the same which were raised before the Bombay High Court and which have been negatived by the said High Court in the aforesaid judgment. Earlier Benches of this Tribunal have no doubt taken a different view but it is quite evident that the Bombay High Court judgment was not brought to the notice of those Benches. This judgment, though delivered on 4.7.1983, has been published in the Excise Law Times' issue of March 1986 only. Since it has been the practice of this Tribunal to respectfully follow the High Court judgment in similar cases when no contrary judgment of any other High Court or of the Supreme Court is brought to its notice, we fall in line with this practice and following the ratio of the aforesaid Bombay High Court - judgment allow this appeal with consequential relief to the appellants.