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TMI Blog2019 (4) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... om 1/4/2002 to 31/4/2007. 2. The brief facts of the case are that the appellant is engaged in manufacture of refractory bricks and Monolithi classifiable under Chapter Heading No. 6901.00 and 3816.00 of Central Excise Tariff Act, 1985( for short CETA). The customers of the appellant are manly integrated steel plant namely, M/s SAIL, RKL Steel Plant, Bhillai Steel plant, Bokaro Steel Plant etc. As per the purchase order of such customers the appellant gave guarantee for their product supplied to them so as to achieve the minimum 'heat life' considering their ladle condition. The purchase order have two clauses i.e. one for bonus and other for penalty. When the refractory material supplied to the customer fail to achieve the minimum threshold limit heat life in their ladle i.e. below minimum heat the customer are required to levy penalty on the appellant deduct the amount by the appellant suo moto from the bill/ invoices. Similarly, when the said material achieved the minimum heat life in ladle and passed the performance test, the customer pay the bonus amount to the appellant. It was the view of the Department that the payment of performance bonus, also known was the 'heat guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4 of the Act. As the period involved in this case is post amendment to Section 4 of the Act we refer to decision of MPR Refractory vs. Commissioner of Central Excise, Hyderabad [2010 (262 ELT 274 (Tri-B)] wherein it is held as under. " 3.Ld. Counsel appearing on behalf of the appellants would submit, that the dispute in this case is on the inclusion of bonus amount as part of sale consideration of the refractory bricks manufactured and sold to M/s. VSP. It is his submission that the bricks are sold at a firm price and these bricks are used in the management of ladle. This activity of management of ladle is a separate activity unconnected with the sale of refractory bricks. It is his submission that the bonus or penalty comes into picture only when the act of ladle management is undertaken. Incidentally, in this case the ladle management is entrusted to the appellants. It is his submission that the ladle management is a case of human diligence and expertise and has nothing to do with the structural efficiency of the bricks. He would submit that all the following judgments clearly hold that the amount received, as bonus cannot be included in the value of the bricks sold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (bricks) supplied to the later outperformed its guarantee period. The question whether the "bonus" is required to be included in the assessable value of the bricks is already covered in favour of the appellants by the Tribunal's decision. Jalan Refractories (P) Ltd. v. Commissioner [2001 (138) E.L.T. 327 (Tribunal) = 2000 (41) RLT 3 (CEGAT) which war followed by the Tribunal in the case of MPR Refractions Ltd. v. Commissioners of Central Excise, Hyderabad Vide Final Order No. 1747/2000 in Appeal No. E 2552/97/Md. [2001 (129) E.L.T. 124 (Tribunal)]" 6. It can be seen from the above reproduced ratio that the Co-ordinate Bench was relying upon the decision of the Tribunal in the case of Jalan Refractories (P) Ltd., we find that the issue was post 1-7-2000. For the period of March, 1996 to November, 2000 i.e. a part of demand was after the amendment to the Section 4 of the Central Excise Act an bringing into the concept of transaction value. 7 This Bench in the case of Indian Telephone Industry (supra) had also taken the same view. The ratio is as under :- "3. We have heard both sides in the matter and on a, careful consideration we find that the issue is no longer res integ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Commissioner (Appeals) held that the performance bonus is includible in the assessable value. However, he gave a finding that only for the period prior to July, 2002,(date of audit of the records), longer period could be invoked and not for the period from July, 2002 to July, 2004. Holding such a view, he remanded the matter to the original authority for re-quantification of duty and imposition of penalty and charging interest. The assessee is aggrieved over the impugned order urging that the performance bonus is not includible in the assessable value. The following case-laws were relied on :- (a) Indian Telephone Industries v. CCE, Cochin - 2004 (175) E.L.T. 884 (Tri.-Bang.) (b) Jalan Refractories (P) Ltd. v. CCE, Jaipur - 2001 (138) E.L.T. 327 (Tri.-Chennai) (c) MPR Refractories Ltd. v. CCE, Hyderabad - 2001 (129) E.L.T. 124 (Tri. - Chennai) (d) Burn Standard Co. Ltd. v. CCE, Coimbatore - 2007 (216) E.L.T. 77 (Tri.-Chennai) (e) Lovely Food Industries v. CCE, Cochin - 2006 (195) E.L.T. 90 (Tri.-Bang.) 3.1 It was also reiterated that ladle management is a post manufacturing activity and the performance bonus is related to the ladle management. 4. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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