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TMI Blog2020 (8) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ference in F.No.6/03/2013/CX.1. 2.The petitioner had supplied oxygen, nitrogen and argon to the 3rd respondent at their Salem Steel Plant. The petitioner was charging Fixed Facility Charges (FFC) and Minimum Take or Pay Charges (MTOP). There was a doubt as to whether the petitioner was required to pay excise duty on the above amounts charged into the ''transaction value'' for the purpose of payment of excise duty under Section 4 of the Central Excise Act, 1944. Petitioner also wanted to know whether the 3rd respondent who purchased the gas from the petitioner could avail CENVAT credit on the aforesaid amount. 3.Since the petitioner did not get any favourable response to the representation sent to the Central Board of Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid on gases as reflected in the invoice for all situations covered in para (a), (b) & (c) above, would be decided in accordance with provisions of CENVAT Credit Rules, 2004. 4. It is the contention of the petitioner that the 3rd respondent was issued with show cause notice to deny CENVAT credit availed on tax paid on such charges. The 3rd respondent had therefore started deducting the amounts against for these payments against supplies made. 5.The petitioner had also approached an arbitrator to decide the issue as to whether the 3rd respondent was justified deducting the aforesaid amount from the payments/invoices agianst the supplies made by the petitioner. It is submitted that the arbitrator has recently passed an award on 07.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nimum Take or Pay Charges (MTOP)> Accordingly the amounts that were earlier refunded to the petitioner pursuant to Order an Appeal no 66-67/2013 both dated 24.10.2013 and the consequential refunds sanctioned on 28.01.2014 were directed to be recovered from the petitioner. By order in Original No 3/2015 (Denovo)-(C.Ex- Commr) dated 26.05.2015, the CENVAT credit availed by the 3rd respondent was also directed to be reversed. 10.Both the petitioner and the 3rd respondent have filed their respective appeals before the Customs and Excise Service Tax Appeallate Tribunal and as on the date of this order both the appeal is pending final hearing before the said Tribunal. 11.In the present writ petitions, the petitioner has prayed for the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts advanced by the learned counsel for the petitioner and the respondents. The 1st, 2nd, and the 4th respondent being officers under the Central Board of Excise and Customs are bound by its clarification dated 10.11.2014 bearing reference F.No.6/03/2013/CX.1. They cannot act contrary to the clarification issued by the Central Board of Excise and Customs particularly in the light of the fact that the clarification has been given pursuant to directions of the Bombay High Court. 15.Even otherwise, if the Minimum Take or Pay Charges (MTOP charges) and the proportionate Fixed Facility Charges (FFC) were built into the transaction value of the gases supplied by the petitioner to the 3rd respondent on which Excise duty was paid by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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