Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S. Malwa Oxygen & Industrial Gases ... on 25 September, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT II EXCISE APPEAL NO. 3634-36 & 4951 of 2004 [Arising out of Order-in-Appeal No. 176-178-CE/IND/APPL-II/2003 dated 17.04.2003 passed by the Commissioner (Appeals-II), Customs & Central Excise, Indore] For approval and signature: Honble Mr. S.S. Kang, Vice President, Honble Mr. Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see the order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Departmental authorities? CCE, Indore Appellant Vs. M/s. Malwa Oxygen & Industrial Gases Pvt. Ltd. Respondents
Appearance:
Shri S.N. Srivastava, DR, Departmental Representative, for the Revenue, None for the respondents Coram:
Honble Mr. S.S. Kang, Vice President, Honble Mr. Rakesh Kumar, Member (Technical) Date of Hearing: 25th September, 2008 FINAL ORDER NO._________________ dated __________ Per S.S. Kang:
Heard learned SDR as none appeared on behalf of the respondents.
2. Revenue filed these appeals against common impugned order whereby the Commissioner (Appeals) held that charges, such as service charges, holding charges, unloading charges, transportation charges etc. collected by the respondents in respect of gas cylinders, are includible in the assessable value. Revenue wants to include these charges in assessable value of Dissolved Acetylene Gas manufactured by the respondents. Contention is that excess to the actual amount collected by the respondents is to be added to the assessable value of gas.
3. We find that this issue is already decided by the Honble Supreme Court in the case of M/s. Indian Oxygen Ltd. vs. CCE, reported in 1988 (36) ELT 723 (SC). Honble Supreme Court has held that delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders. These charges have to be excluded from the assessable value.
4. In the present case there is no evidence on record to show that the value of the gas manufactured was suppressed to the extent the charges in respect of maintenance of cylinders. In these circumstances we find no merit in the appeal. Appeal is dismissed.
(Dictated & pronounced in the Open Court.) (S.S. KANG) VICE PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL) Dated 26th September, 2008 RK