9911796707
TMI Blog2024 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... paration plant in a piece of land provided by M/s. SAIL for manufacture and supply of liquid gases to M/s. SAIL. As stipulated in the said agreement, M/s. SAIL was required to pay facility charges to the appellant in connection with sale of gases. The grievance of the appellant that even though during the month of August 2008 and September 2008, there was no manufacture and supply of gases, the facility charges collected from the clients cannot be subjected to excise duty. Even though for the period August 2008 to September 2008 there was no production of gases, the appellant was collecting facility charges which is in connection with manufacture and sale of gases for subsequent months utilizing the said facility installed for manufacture a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he default for non-appearance in their application, it is submitted that address of the advocate representing the appellant was slightly different, hence, the notices sent to the advocate could not be received. He submits that there is no mistake on their part for non-appearance as the advocate could not receive the notice due to incorrect mention of the address in the despatched hearing notice. 3. Considering the submissions advanced by the learned advocate and the grounds mentioned in the application, we are of the view that the appellant be given a chance to present their case, in the interest of justice, as the issue had not been decided on merit. In the result, the final order dated 18.12.2023 dismissing their appeal for non-prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d September 2008. Aggrieved by the said order, they filed an appeal before the Commissioner (A), who in turn upheld the order of the adjudicating authority. Hence, the present appeal. 6. At the outset, the learned advocate for the appellant has submitted that the appellant had entered into an agreement on 20.05.2006; pursuant to which, they invested huge amount of money and set up an air-separation plant in a piece of land leased by M/s. SAIL and were manufacturing gases and supplying the same to M/s. SAIL. The appellant has sold at the price for which the gases supplied and discharged appropriate excise duty on the same. Besides, they had also charged facility fee which is not a consideration for the goods supplied but an assured return ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is payable on the facility charges when there is no production of gases commenced. 6.2 Further, he has submitted that the Circular F.No.6/03/2013/CX.1 dated 10.11.2014 is not applicable to present circumstances since the issue involved in the present appeal relates to the period prior to the Circular. 7. Per contra, the learned Authorised Representative for the Revenue has submitted that the facility fees is towards supply of gases and having nexus in the manufacture and supply of gases with the facilities installed by the appellant in the premises of M/s. SAIL, therefore, the facility charges collected from their customers M/s. SAIL since having a direct bearing with the sale of gases, hence, the same is chargeable to excise duty. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Undisputedly, the appellant through an agreement dated 20.05.2006 with M/s. SAIL, installed an air-separation plant in a piece of land provided by M/s. SAIL for manufacture and supply of liquid gases to M/s. SAIL. As stipulated in the said agreement, M/s. SAIL was required to pay facility charges to the appellant in connection with sale of gases. The grievance of the appellant that even though during the month of August 2008 and September 2008, there was no manufacture and supply of gases, the facility charges collected from the clients cannot be subjected to excise duty. 10.1 The said objection, in our view, is contrary to the principle of valuation in as much as the facility charges are collected in connection with and having a direct nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so supplied are used by another assessee as inputs admissibility of CENVAT Credit of 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. 10.2 The said Circular has also been considered by the Tribunal in M/s. Inox Air Products Ltd. (supra) in confirming the demand for the period May 2008 to March 2009. In these circumstances, we do not find merit in the contention of the appellant that the said Circular is not applicable to their case since the duty was paid for August 2008 to September 2008 on the facility charges collected from their customers M/s. SAIL. Non-reimbursement of the said duty by M/s. SAIL cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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