2008 (6) TMI 427 - AT - Central Excise

Penalty u/r 25 - Valuation - cylinders have to be returned within a period of 30 days. When the cylinders are not returned within the stipulated period certain amount is charged as rental charges - whether rental charges have to be included in the assessable value of the gas sold or not? - Held that - The rental charges are leviable when the cylinder is retained for a period longer than the stipulated time. When such is the case how can one hold that such charges are in relation to the sale of the gases? - appeal allowed - decided in favor of appellant.

Summary

Issues: Interpretation of assessable value for gas sold, inclusion of rental charges, applicability of tribunal rulings, legality of penalty and interest

In this case, the appellant sells gases in cylinders with a requirement for the cylinders to be returned within 30 days, with rental charges imposed if not returned within the stipulated period. The main issue revolves around whether these rental charges should be included in the assessable value of the gas sold. The Commissioner (Appeals) had held that the charges are part of the Transaction Value and should be included. The appellant argued that the charges should not be included based on legal precedents such as the Indian Oxygen Ltd. case and the Grasim Industries Ltd. case. The appellant also contested the imposition of a penalty and the demand for interest under the Central Excise Rules, 2002.

Upon careful consideration, the Tribunal found that the issue at hand is indeed settled by the Apex Court's judgment in the Indian Oxygen case. The Tribunal had previously followed this decision in the appellant's own case. The Tribunal disagreed with the Commissioner (Appeals)'s view that the issue had not reached finality and emphasized that as long as there is no stay on tribunal rulings, they must be followed. The Tribunal deemed the Board's clarification relied upon by the Commissioner (Appeals) as erroneous, asserting that rental charges for retained cylinders cannot be considered in relation to the sale of gases. Consequently, the Tribunal set aside the impugned order and allowed the appeal with consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, determining that the rental charges for retained cylinders should not be included in the assessable value of the gas sold. The Tribunal emphasized the importance of following established legal precedents and tribunal rulings, dismissing the penalty and interest demands as unjust and illegal.