Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Gujarat Alkalies & Chemicals Ltd on 18 August, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/1073,1080,1108/2007 Arising out of i) OIA-COMMR-A--132-VDR-II-2007 dtd 5.7.2007 ii) OIA-COMMR-A-143-VDR-II-2007 dtd 19.7.2007 iii) OIA-COMMR-A-144-VDR-II-2007 dtd 19.7.2007 Passed by Commissioner of Central Excise, CUSTOMS (Appeals),Vadodara ii Commissioner of Central Excise, CUSTOMS (Appeals)- Vadodara - ii - Appellant(s) Vs Gujarat Alkalies & Chemicals Ltd - Respondent (s)
Represented by For Assessee : Shri Dhaval Shah, Learned Advocate For Revenue : Shri L Patra, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 18/8/2015 ORDER No. A/11246-11248/2015 dtd 18/8/2015 Per : Mr.P.K. Das, Common issue is involved in these appeals and therefore, all are taken-up together for disposal. Revenue filed these appeals against the orders of Commissioner (Appeals).
2. The issue involved in these appeals is that whether the amortized value of Tonner/Cylinder supplied to the respondent free of charge by the customer for filling the Liquid Chlorine manufactured by the respondent, is to be included in assessable value of goods Liquid Chorine cleared by the respondent to the customers.
3. The Learned Authorised Representative on behalf of the Revenue fairly submits that the Commissioner (Appeals) proceeded on the basis of the decision of the Tribunal in the case of Grasim Industries Ltd Vs CCE, Indore 2004(164)ELT.257(Tri.). It is submitted that Revenue filed appeal before the Honble Supreme Court against the said decision. It is also submitted that the Honble Supreme Court referred this matter before the Larger Bench as reported in the case of CCE, Indore vs. Grasim Industries Ltd 2009(241)ELT.321(SC). He also relied on the decisions of the Tribunal in the case of Rai Agro Industries Ltd Vs. CCE, Ludhiana - 2011(263)ELT.550(Tri.Del.) and CCE, Rohtak Vs Sujal Packaging Ltd 2013(295)ELT.317(Tri.Del.)
4. On the other hand, the Learned Advocate on behalf of the respondent submits that on the identical issue, the Tribunal in the case of CCE, Indore Vs Grasim Industries Ltd - 2014(304)ELT.310 (Tri.Del), dismissed the appeal filed by Revenue. It is further submitted that on the identical issue, this Bench in the case of M/s Transpek Industries Ltd Vs CCE Vadodara - A/1382/WZB/AHD/2012 dtd 4.9.2012 following the decision of the Tribunal in the case of TCP Ltd Vs CC Madurai - 2008(227)ELT.109 (Tri.Chennai) allowed the appeal of the assessee.
5. On perusal of the grounds of appeal filed by the Revenue, we find that it is contented by the Revenue that they had not accepted the decision of the Grasim Industries Ltd., and they have filed before the Honble Supreme Court. It is stated that the price of Liquid Chlorine is not the sole consideration for the sale, which can be comprehended from the facts that the price charged for Liquid Chlorine by the assessee in the case of supply of tonners by the buyer, is less than the price charged by the assessee, in case of supply of tonners is not by the buyer, but is by the assessee himself.
6. The Commissioner (Appeals), in the impugned order had observed that the respondent while clearing Liquid chlorine manufactured by them to their customers in the tonners/cylinders supplied by the later and there is no allegations/findings that the conditions laid down under Section 4(1)(a) of the Central Excise Act 1944 had not been satisfied. Hence, that the ground taken by the Revenue in the appeal can not be sustained. The revenue also not placed any material on such allegations before the Tribunal. We also noticed that this Bench on the identical issue, in the case of Transpek Industries Ltd (Supra) allowed the appeal in favour of the assessee. The relevant portion of the said decision is reproduced below:
2. On perusal of the records, we find that the issue involved in this case is regarding non-inclusion of the value of the packaging material i.e. cylinders received from the purchaser of the appellants final product. We find that identical issue has been decided finally by the co-ordinate bench of the Tribunal in the case of TCP Limited Vs CCE Madurai 2008 (227) ELT 109 (Tri-Chennai), the ratio of which we respectfully produce below:-
The appellants are manufacturers of liquid Sulphur dioxide and other chemicals. During the period of dispute [November 2004 - August 2005], they cleared liquid Sulphur di-oxide in cylinders supplied by buyers, on payment of duty on the basis of transaction value. The department wanted the amortized value of cylinders to be included in the assessable value. Accordingly, a show-cause notice was issued demanding differential duty of Rs. 9,495/- from the appellants for the above period and proposing penalty on them. Both the lower authorities upheld these proposals. In the result, there is also a penalty of Rs. 10,000/- on the appellants.
After hearing both sides and considering their submissions, we note that a similar question was considered by this Tribunal for a post - 1-7-2000 period in the case of Grasim Industries v. CCE, Indore - 2004 (164) E.L.T. 257 (Tri. Del.). In that case, the excisable commodity was liquid chlorine which was sold by the assessee in tonners supplied by buyers. The buyers were not related to the assessee, nor had the Revenue a case that the price was not the sole consideration for the sale. On these facts, no amount attributable to the value of the tonners was held to be includible in the assessable value of the excisable goods. We have not found any factual difference in the present case. The buyers were not alleged be affected by any extra-commercial consideration. Hence the value of the cylinders owned by the buyers was not includible in the assessable value of liquid Sulphur di-oxide.
In the result, the impugned order is set aside and this appeal is allowed.
3. It can be seen from the above reproduction that the issue is now squarely covered in favour of the assessee and following the same, we hold that the impugned order is liable to be set aside and we do so. The appeal is allowed.
7. The Tribunal in recent decision in the case of M/s Grasim Industries Ltd 2014(304)ELT.310 (Tri.Del.) held as under:
6.In this case, the fact that liquid Chlorine? manufactured by the Respondent is being sold by them either in their own tonners or in the customers tonners or even through pipeline, shows that Chlorine is marketable as such. It is also not disputed that testing is optional and the testing charges have been charged only in those cases where the liquid chlorine was supplied in the tonners brought by the customers and the customers had requested for testing of their Cylinder/tonners. In these circumstances neither the cost of tonners nor their testing charges would be includible in the assessable value of liquid chlorine. In fact, in this case, the testing of the tonners belonging to the customers on their request is an activity different from the sale of Chlorine which is marketable as such and, hence the charges for such testing cannot be said to be for the reason of or in connection with sale of Chlorine, as the customers could have got the testing of their tonners done from other persons also.
8. The Tribunal in the case of M/s Grasim Industries Ltd (Supra) had referred the decision of the Honble Supreme Court in the case of M/s Grasim Industries Ltd 2009(241)ELT.321(SC) . In the case of TCP Ltd (supra) the issue involved is the inclusion of the packing charges in the assessable value of the cylinder supplied by the buyers, which is similar to in the present appeal.
9. In view of the above discussion, we do not find any reason to interfere the orders of the Commissioner (Appeals). Accordingly, all these appeals filed by the Revenue are rejected.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das)
Member (Technical) Member (Judicial)
swami
??
??
??
??
2