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TMI Blog2023 (12) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were under the bonafide belief that the same did not merit inclusion in the assessable value. It is observed that contention of the Appellant is supported by the decision of the Tribunal, Kolkata in the case of BOC INDIA VERSUS COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR [ 2004 (11) TMI 219 - CESTAT, KOLKATA] . In the said decision, the Tribunal kolkata has held that the 'facility charges' collected by the assessee from those customers on whose factory they have erected and maintained Vacuum Insulated Storage Tank, is not includable in the assessable value as these charges are no way connected with the sale of gases. Extended period of limitation - HELD THAT:- There are merit in the contention of the Appellant that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the DM water and duly disclosed the same in the ER -1 returns filed by them for the relevant period. With respect to the facility charges recovered from TISCO in terms of Para 7.15.2 of the agreement, since the same is payable towards the fixed assets developed/ deployed and the operation and maintenance of the same, irrespective of the supply of DM water, the Appellant was under the bonafide belief that the same did not merit inclusion in the assessable value. According to the Appellant their belief was supported by the decision in the case of BOC India Limited vs. CCE, Jamshedpur . 3. A Show Cause Notice dated 04 January 2007 was issued to the Appellant proposing to demand duty of Rs. 43,20,720/- by including the 'facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant is that they addressed a letter dated 08.12.2005 to the concerned authorities seeking clarification on the excisability and classification of the DM water. A copy of the agreement entered into between them and TISCO was also enclosed along with the said letter. Para 7.15.2 of the said agreement clearly states that the Appellant would be recovering Facility Charge to the tune of Rs. 17.65 lakhs on a monthly basis from TISCO. As such, the fact of collection of the facility charge was made known to the department vide the letter dated 08.12.2005. The same has also been acknowledged by the Ld. Adjudicating Authority in the de-novo order dated 24.03.2010. Thus, the Appellant contented that there is no suppression of facts involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value. We observe that contention of the Appellant is supported by the decision of the Tribunal, Kolkata in the case of BOC India Limited vs. CCE, Jamshedpur. In the said decision, the Tribunal kolkata has held that the 'facility charges' collected by the assessee from those customers on whose factory they have erected and maintained Vacuum Insulated Storage Tank, is not includable in the assessable value as these charges are no way connected with the sale of gases. The relevant part of the said decision is reproduced below: 6 . In present case also the supply of services i.e. maintenance, construction of VIST and the pipeline was not a manufacturing activity and was ancillary to the supply of gases but it was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng used by the customer irrespective of whether there is a supply of gas and irrespective of the quantity supplied. There is no difference in price of the product in respect of the goods supplied from whom facility charges are not being recovered. So we hold that facility charges need not be included in the assessable value. 9. In view of the decision cited above, the Appellant submits that they were under the bona fide belief that no duty was required to be discharged on the 'facility charges' recovered from TISCO. We find merit in the contention of the appellant. We find that the decision of the CESTAT, Kolkata in the case of BOC India Limited Vs. CCE, Jamshedpur was affirmed by the Hon ble Supreme Court in the case of Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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