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TMI Blog2007 (12) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (T) [Order per : T.K. Jayaraman, Member (T)].-1. This appeal has been filed againist Order-in -Appeal No.33/2007-C.E., dated 27-2-2007 passed by the Commissioner of Central Excise (Appeals-I), Bangalore. The issue involved in this case is whether the rental charges collected from the customers on the cylinders used for supply of their excisable goods is includable in the assessable value or not. The appellants Bhoruka Gases Limited are engaged in the manufacture and clearance of excisable goods namely "Industrial Gases and Medical grade Oxygen" Revenue proceeded against them on the ground that they had not included the rentals collected by them on the gas cylinders supplied to the customers on appropriate payment of duty. Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value under Section 4(3) (d) of Cetral Excise Act, 1944 is subject to charging provisions contained in Section 3 2. Indian Oxygen Ltd. - 1983 (36) E.L.T. 730 The Supreme court clearly and unambiguously set out that the rental of cylinders would not be includible as the same was not a manufacturing activity. 3. Indian Oxygen Ltd. v. Collector of C.E. - 1988 (36)E.L.T. 723 Further in this case their Lordships observe that delivery and collection charges for gas cylinders are not to be added to the assessable value as they have nothing to do with the manufacture 4. Hindustan Gas Industries Ltd. 1989 (41) E.L.T. 663 This case was affirmed by the S.C in 1995.(7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt against Larger Bench decision of Tribunal pending before Supreme Court wherein no stay granted - Decision of Tribunal is to be treated as precedent 3.1 It is seen that the Tribunal in the case of Grasim Industries v. CCE, Indore - 2004 (164) E.L.T. 257 has held that the Apex Court judgment in the case of Indian Oxygen was too relevant even after 1-7-2000. When all the case laws cited by the advocate are in favour of the appellant, the Commissioner has still not followed the same, for the simple reason that the department had gone into appeal over the Tribunal order and therefore, the issue has not reached finality. Judicial discipline requires that the lower authorities follow the decisions of the Tribunal if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Central Excise duty cannot be equated with sales tax. They have different connotations and apply in different situations. Central excise duty is chargeable on the excisable goods and not on the goods which are not excisable. Thus, a 'goods' which is not excisable if transplanted into a goods which is excisable would not together make the same excisable goods so as to make the assessee liable to pay excise duty on the combined value of both. Excise duty, in other words, would be leviable only on the goods which answer the definition of "excisable goods" and satisfy the requirement of Section 3. A machinery provision contained in Section 4 and that too the explanation contained therein by way of definition of 'transaction value' can neith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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