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TMI Blog2023 (6) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court directed the Board to issue clarification. Pursuant to this, the Board vide circular dt. 10.11.2014 has clarified that FFC charges has to be included in the assessable value for discharging cenvat credit. It can be seen that ownership of the tanks remains with the appellant and the possession and effective control of the tanks is with the customers during full term of the agreement. The definition of supply of tangible goods as per section 65 (zzzzj) defines as any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for continuous supply of nitrogen liquid. The customers are required to provide space for installing the said tanks and free access is given to the appellant for supply of liquid nitrogen gas. Appellant was receiving fixed facility charges (FFC) from their customers for providing such storage tanks. The ownership, control, maintenance and insurance are undertaken by the appellant and the customers are restricted to use the said tanks for storage of the products purchased from the appellant alone. It therefore appeared to the department that the appellant is providing services in the nature of supply of tangible goods . Show cause notice was issued to the appellant demanding service tax along with interest and for imposing penalties. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The said clarification has been issued specifically in the case of the appellant namely M/s.Inox Air Products Ltd. It is clarified in the said circular that appellant has to discharge Central Excise duty on the FFC and MTOP charges collected. 3. The very same issue as to whether appellant is liable to pay service tax on the FFC collected by them was analyzed by the Tribunal in the case of Goyal MG Gases Private Ltd. 2022-VIL-189-CESTAT-KOL-ST. The Tribunal in the said case followed the decision of the Hon ble High Court of Madras in the appellant s own case in Inox Air Products Pvt. Ltd. Vs UOI - 2020 (38) GSTL 158 (Mad.). Ld. Counsel prayed that the appeal may be allowed. 4. Ld. A.R Sri M. Ambe supported the findings in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : M/s.Inox Air Products Limited (hereinafter referred as INOX) have made several representations in relation to inclusion of Fixed Facility Charges (FFC) and Minimum Take Or Pay (MTOP) charges in the assessable value of the gases being manufactured and supplied to their customers for the purpose of charging central excise duty. INOX have also requested for a clarification regarding admissibility of Cenvat Credit to the buyers of gases. The earlier representations were replied vide letter of even number dated 28th May 2014. Thereafter, INOX have again represented vide their letter dated 25.6.2014. . 5. In view of the same, it is clarified that : (a) In the months where there is a supply of gas, all elements of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective control of the tanks is with the customers during full term of the agreement. The definition of supply of tangible goods as per section 65 (zzzzj) defines as any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances . In the peculiar nature of the products, the appellant has to supply tanks before supply of liquid gases to the customers. Thus the assessee is required to include the value of FFC and MOTP in the transaction value of the gases for discharging the Central Excise duty. The said clarification issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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