2011 (3) TMI 1211 - AT - Central Excise

Undervaluation - includeability or otherwise of the fixed rental charges collected by the appellants in respect of cylinders (in which the gases were supplied) in the assessable value of gases - Time limitation - The contention of the assessee is that the rental charges are collected for the delayed return of cylinders after the free loan period of 10 days and they have a slab rate of rent depending upon the time taken to return the cylinders - Held that - As in the Indian Oxygen Ltd. 1988 (8) TMI 98 - SUPREME COURT OF INDIA clearly held that the supply of cylinders is an ancillary activity to the manufacture of gases and therefore the consideration received for the same cannot be included in the assessable value of the gases. Similarly held in the case of CCE Meerut Vs. Bisleri International Pvt Ltd. 2005 (7) TMI 102 - SUPREME COURT OF INDIA the rent on containers i.e. rent equivalent to interest collected by the assessee on account of delay in returning of empty crates/bottles cannot form part of the value of aerated waters and hence not includable in the assessable value. Also see CCE Indore Vs. Indore Bottling Co. 2002 (11) TMI 103 - SUPREME COURT OF INDIA Also in the assessee s own case 2002 (2) TMI 820 - CEGAT MUMBAI this Tribunal held that the storage tank hire charges collected in respect of supply of gases cannot be included in the assessable value of the gases supplied as the activity is not a manufacturing activity but a facility provided to the buyers.

Summary

Issues:
Includeability of fixed rental charges in the assessable value of gases.

Analysis:
The appeal was against an order alleging undervaluation of gases due to fixed rental charges collected by the assessee for cylinders. The Additional Commissioner confirmed a duty demand, interest, and penalty. The Commissioner (Appeals) upheld the decision, stating the rental charges were not compensation for delayed cylinder return. The assessee argued the charges were for delayed cylinder return post a free loan period, citing legal precedents. The Tribunal referenced various judgments, including Indian Oxygen Ltd., to conclude that rental charges for cylinders are not part of the assessable value of gases. The appeal was allowed, setting aside the lower appellate authority's order.