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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 ..... alty for the extended period of limitation. 2. The Appellant M/s. NLC Nalco India Limited had set up a plant inside the premises of Tata Steel and Iron Company Limited (TISCO) for the supply of De-Mineralised water (DM Water) in terms of an agreement dated 06 December 2004. The Appellant sought clarification from the authorities regarding the excitability and classification of the DM Water vide its letter dated 08 December 2005, enclosing therewith a copy of the agreement dated 06 December 2004. As no reply was received from the authorities, the Appellant began to discharge excise 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 did not disclose whether the said charge would form a part of the transaction value or would be collected separately. Aggrieved against the impugned order of the Commissioner (Appeals), the Appellant filed the present appeal. 4. The Appellant submits that there was no deliberate withholding of information from the department so as to justify suppression of facts and the factum of the realization of 'facility charge' was well known to the department pursuant to the sharing of the agreement dated 06 December 2004 vide letter dated 08 December 2005. The contention of the 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 wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge excise duty on DM water and duly disclosed the same in the ER -1 returns filed by them for the relevant period. Thus, they contended that there is no suppression of facts involved in this case. 8. We observe that 'facility charges' are recovered from TISCO in terms of Para 7.15.2 of the agreement. These charges are payable towards the fixed assets developed/ deployed and the operation and maintenance of the same, irrespective of the supply of DM water. The Appellant submits that they were under the bonafide belief that the same did not merit inclusion in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facility charges allegedly receivable from TISCO, Eastern Railway, Chittaranjan Locomotive Works. Just like in the case of TELCO, the agreement with the aforesaid three parties were also terminated in advance and after such termination neither any facility were rendered nor any maintenance was provided and no such facility charges were charged. 7. It can be concluded that the facility charges are not in any way related to or connected with the sale of gases. We find that the facility charges are payable at all times so long as the installations are being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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