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TMI Blog2014 (4) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... sold by them to their customers in their own cylinders called Tonners, and also in the cylinders/Tonners brought by the customers. As per the facts narrated in para 14 of the Order-in-Original dt. 09.09.04, some quantity of liquid chlorine is also supplied through pipeline. The Tonners are required to undergo periodical Hydraulic testing as per the provision of Gas Cylinder Rules, 1981. The audit officers in course of examination of the respondent's records for the period from 2000-2001 to 20001-2002, pointed out that while the respondent are collecting the charges from their customers for testing of Tonners, they are not including these charges in the assessable value of Chlorine being sold by them. Accordingly two Show Cause Notices were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that Hydraulic testing charges for the Tonners in which Caustic Soda is sold are not includible in the assessable value of the caustic soda. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Ms. Shweta Bector, the learned DR, assailed the impugned order by reiterating the grounds of appeal in the Revenue's appeal and cited the judgment of Tribunal in case of Kota Oxygen (P)Ltd. Vs. CCE, Jaipur, reported in 2000(121) ELT-369 (Tribunal) wherein it was held that when acetylene gas was being sold by the Appellant at the same price irrespective of whether the gas was supplied in their own cylinders or in the cylinders brought by the customers, deduction from sale pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request, that the testing of the Tonners belonging to customers on their request is an activity which has no link to the sale of Chlorine to them and hence testing charges in such cases charged from the customers, cannot be said to be for the reason of or in connection with sale of the Chlorine, that in any case, the issue involved in the present case stands decided by the Tribunal in the Respondents favour in case of CCE Ludhiana Vs. Punjab Alkalis & Chemicals Ltd. , reported in 2004(168) ELT-82(Tri.-Del.), that the same view has been taken by the Tribunal in case of Harshita Handling Vs. CCE, Bhopal, reported in 2010(19) STR-596 (Tri.-Del.), and that in view of the above, there is no infirmity in the impugned order. 5. We have considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunals Judgment in the case of Punjab Alkalis & Chemicals Ltd.(Supra), the Revenue has filed appeal against the order of the Commissioner (Appeals) by mainly reiterating the reasoning of the Assistant Commissioner and emphasizing that testing of tonners, in which chlorine is supplied, is a mandatory requirement and therefore the charges for testing of the tonners, even if the testing is done on the request of the customers, have to be treated as the charges collected from the customers for the reason of or in connection with sale of Chlorine and would be includible in the assessable value of the Chlorine sold in such tonners. The point of dispute is as to whether the testing charges for the customers tonners which according to the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude the amounts paid by the buyers for something which has no nexus with the emergence of marketable goods or does not contribute to the value of the goods up to the point of sale from the place of removal. Thus if some goods become marketable and can be sold only when packed in certain type of containers and testing of those containers is mandated by law, the testing charges of those containers would be includible in the value along with the cost of such containers if the containers are of durable and returnable nature, the amortized cost of the container including testing charges during the period of use would be includible in the assessable value. Apex Court in the case of M/s. Hindustan Polymers Vs Collector of Central Excise, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4, as it stands w.e.f. 01.04.2000, as the Apex Court in para 51 of its judgment in case of Bombay Tyre International (Supra) has held that the statutory provision regarding inclusion of packing charges calls for strict construction, as levy is sought to be extended beyond the manufactured article itself and accordingly the cost of only that packing would be includible in the assessable value which is necessary to make the goods marketable and this principle would be applicable while interpreting the provision of Section 4, as it stands w.e.f. 01.07.2000, as the nature of the levy of Central Excise duty has not changed. Therefore, if some goods are marketable without being put into the containers, the cost of containers including their te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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