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TMI Blog2024 (6) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... 341 - CESTAT MUMBAI] , it has been held that ' the appellants case is squarely covered under new Section 4(1)(a) of CEA which essentially permit different transaction values, unlike normal sales price existed prior to 1-7-2000, which has also been explained by C.B.E. C., vide its Circular No. 354/81/2000-TRU, dated 30-6-2000.' There are no reason to sustain the order now impugned and is set aside - appeal allowed. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Ms Manasi Patil , Advocate for the appellant Shri C Vinod Assistant Commissioner ( AR ) for the respondent ORDER PER : C J MATHEW These five appeals before us, preferred by M/s Mahanagar Gas Limited against order [order-in-appeal no. CD-45 to 50/M-II/2015 dated 2nd January 2015] of Commissioner of Central Excise (Appeals), Mumbai Zone II disposing off challenge to five orders-in-original by upholding total duty liability of ₹ 67,10,171/- under section 11A of Central Excise Act, 1944, along with appropriate interest under section 11AA of Central Excise Act, 1944, ordered therein, and imposition of penalties under section 11AC of Central Excise Act, 1944 and rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of facts here the facilities offered by the buyer for installation of equipment which is, actually, to the benefit of such buyer and the discount offered by appellant which, certainly, is not gain to the seller and contrived hyphenating of the two without any justification for concluding that the amount of trade discount is money value of the facilities at premises of customer. The benefit derived by each from burdening cost/loss on themselves are different and that there are two separate transactions does not appear to have crossed the minds of the lower authorities. The appellant has similar arrangements with oil marketing companies (OMC) and Thane Municipal Transport (TMT), to name a few. We take note that the transaction involved in the proceedings initiated against the appellant here is identical to that, insofar as the agreement is concerned, with the one for Thane Municipal Transport (TMT) which had been determined against the appellant by the lower authorities in like manner. In appeal, that outcome was reversed. 6. In re Mahanagar Gas Ltd, it has been held that 4. The lower authorities seem to have been led to their respective conclusions from the presumption that 9. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference as the charges for the services rendered by OMCs to MGL and the Department also claims that sale is not taking place between the appellants and OMCs. We have perused the copies of Central Excise invoices issued by MGL to OMCs on daily basis for dispensing CNG from 6.00 am to 6.00 am showing the quantity supplied, assessable value, duty paid/payable, etc. We also find that there are joint tickets prepared outlet-cum-party-wise showing the sale period starting at 0600 hrs. on preceding day and ending at 0600 hrs. on the succeeding day and also show the quantity of CNG dispensed with opening reading, closing reading, total reading and total quantity supplied. Such joint-tickets are also signed by both parties, i.e. appellants and OMCs. Thereafter, the appellants are raising tax invoices upon OMCs on monthly basis with specific business days within which payment has to be made by OMCs and for any delay in payment, interest is also payable by OMCs. The appellants have paid VAT/sales tax on their sale of CNG to OMCs, as evidenced from the invoices. Further, sales invoices of OMCs for resale of CNG to ultimate buyers, VAT/sales tax is paid by them on their sales price. In nutshell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracts is merely to provide assistance for supply/sale of CNG to the vehicles by MGL. For acting as an agent of MGL, PPs get specified service charges on per kg basis of the CNG sold by them on behalf of MGL. Since the PPs are acting as agents of MGL for supply of CNG, PPs consider their activity as Business Auxiliary Service and pay service tax on the commission received from MGL. We find that sale of CNG by the appellants to OMCs is on principal-to-principal basis, which is clear from various terms/covenants of the agreements between MGL and OMCs, i.e. retail sales price is the price at which CNG is to be sold to vehicles by the OMC as communicated by MGL to OMCs, from time-to-time; OMC shall sell CNG at the outlets situated at the site; Retail Price of CNG shall be fixed by MGL and the OMCs shall sell the CNG only at the retail price communicated by MGL to OMCs, from time-to-time; OMCs shall pay to MGL the retail price as reduced by profit margin/commission/discount; MGL shall, before 5th of every month, send to OMCs an invoice for the quantity of CNG sold by OMCs during the preceding month. Such invoices shall be based on the meter reading on CNG dispensers jointly taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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