2010 (11) TMI 906 - AT - Central Excise

Summary

Issues involved:
The issues involved in this case include whether the maintenance charges collected by the appellant from customers for the sale of gases in cylinders are includible in the assessable value, the treatment of Acetone cost in the value of Acetylene gas, the time limitation for duty demand, Modvat credit eligibility, and the imposition of penalty under Section 11AC.

Duty demand for the period 1-1-97 to 30-6-2000:
The appellants were engaged in the manufacture of Oxygen and dissolved Acetylene Gases chargeable to central excise duty. The Department alleged that the "cylinder maintenance charges" and "cylinder rental charges" were not included in the assessable value of the gases, resulting in short payment of duty. The Joint Commissioner confirmed duty demands for maintenance charges related to the cost of Acetone used for dissolving Acetylene, dropped demands for other charges, and imposed penalties. The Commissioner (Appeals) upheld the duty demand for maintenance charges but ordered reworking of the amount. The appellant appealed against this order.

Duty demand for the period 1-7-2000 to January, 2001:
The Original Adjudicating Authority confirmed the entire duty demand for maintenance charges and rental charges for this period. The Commissioner (Appeals) upheld the duty demand for maintenance charges, set aside the demand for rental charges, and ordered reworking of the duty demand. The appellant challenged this order.

Appellant's arguments:
The appellant argued that the maintenance charges should not be included in the assessable value, the cost of Acetone should be treated as an input, Modvat credit should be allowed, and the duty demand for the period 1-1-97 to 30-9-98 was time-barred due to no suppression of facts.

Department's defense:
The Department contended that maintenance charges related to Acetone cost should be included in the assessable value, suppression of facts occurred, no duty paying documents were produced, and penalty under Section 11AC was rightly imposed.

Judgment:
The Tribunal upheld the duty demand for maintenance charges related to the cost of Acetone used for dissolving Acetylene gas. The appellant's collection of Acetone cost under the guise of maintenance charges was considered suppression of facts. The imposition of penalty under Section 11AC was upheld. However, the Tribunal allowed Modvat credit for duty on Acetone. The duty demand was reworked for maintenance charges. The appeal was disposed of with the above modifications.