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2013 (4) TMI 471 - AT - Central ExciseValuation - Supply of industrial oxygen gas by the appellant, charges called facility charges were collected from the customers. - Department contended that these charges were liable to be included in the assessable value. - Held that The ruling of the Apex Court in CCE vs. Indian Oxygen Ltd. 1988 (8) TMI 98 - SUPREME COURT OF INDIA wherein it was held that, the supply of gas cylinders by the manufacturer of gas was, strictly, not incidental to manufacture of the gas and, hence, the rental for the cylinders was not includible in the assessable value of the gas, was followed by this Tribunal in the aforesaid case of Inox Air Products Ltd. vs. CCE Mumbai-VII 2002 (2) TMI 820 - CEGAT, Mumbai identical valuation issue was settled in favour of the assessee by a coordinate Bench of this Tribunal. The impugned order is set aside and this appeal is allowed.
Issues:
Valuation of industrial oxygen gas for excise duty - Inclusion of "facility charges" in assessable value. Analysis: 1. The appellant, engaged in manufacturing industrial oxygen, nitrogen, and dissolved acetylene, had two modes of clearing oxygen gas. The dispute arose regarding the inclusion of "facility charges" collected from customers in the assessable value of oxygen gas supplied during 1994-1998. A show-cause notice was issued, leading to the demand of duty, interest, and penalties by the adjudicating authority, which was upheld by the Commissioner (Appeals), prompting the appellant's appeal. 2. The Tribunal noted that a similar valuation issue had been settled in favor of the assessee in a previous case, Inox Air Products Ltd. vs. CCE Mumbai-VII [2002(144) E.L.T. 359 (Tri-Mum)]. Additionally, the Tribunal referenced a 1988 Supreme Court ruling in CCE vs. Indian Oxygen Ltd. [1988 (36) E.L.T. 730 (S.C.)], which determined that rental charges for gas cylinders were not to be included in the assessable value of gas, as the supply of cylinders was not incidental to gas manufacturing. The Tribunal, following the precedent set by the apex court and the previous Tribunal decision, ruled in favor of the appellant. 3. Given the settled case law and precedents, the Tribunal set aside the impugned order, allowing the appeal of the assessee. The decision was pronounced in open court at the conclusion of the hearing, providing relief to the appellant in the dispute over the inclusion of "facility charges" in the assessable value of industrial oxygen gas for excise duty purposes.
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