9911796707
TMI Blog2009 (12) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd. v. CCE, Jamshedpur as reported in 2005 (183) E.L.T. 475 (Tri.-Kolkata), held that such charges are not includible in the assessable value. Admittedly, the department has filed an appeal against this decision as per Letter F. No. IV/16-21/MP/2007, dated 14-3-07 of CCE, Ahmedabad II. In the meanwhile, proceedings were initiated against the appellant to deny the benefit of Cenvat credit availed by them in respect of duty paid on tank facility charges and two show cause notices were issued and admittedly one out of which has been issued beyond the period of one year. The show cause notices have culminated into the impugned orders whereby the duty demand with interest equal to the Cenvat credit availed by them on tank facility charges h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the supplier s end only and therefore the show cause notice itself was not to be issued. Further, he also relies on the decision of the Tribunal in case of Shreemal Silk Mills v. CCE Surat as reported in 2009 (236) E.L.T. 592 (Tri.-Ahmd.) in support of his contention that the duty demand has not been confirmed against the appellant under Section 11A (2) of Central Excise Act, 1944 and therefore confirmation of demand is itself without jurisdiction. 4. Learned SDR, on the other hand, submits that credit has been denied on the ground that tank facility charges are nothing but in fact are costly equipments and what is collected is rental charges and therefore the credit availed by the appellant as credit of duty on capital goods is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the action to be taken is not at the receiver s end. Further, I also find that the advice given by the CCE, Ahmedabad II, is perfectly legal and it is strange that in spite of this advice, officers have chosen not only to issue show cause notice but also imposed penalty. In view of the two letters cited by the learned advocate and also in view of the fact that there is already Tribunal s decision on this issue, all of which go to show that the issue as to whether the duty is payable on so called tank facility charges, is debatable and therefore in this case, the extended period cannot be invoked and even if extended period is not invoked, penalty cannot be imposed. Thus, from the analysis above, I find that either on merit or on the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
