Rakesh Kumar, Member (T) - (1.) THE respondent manufacture industrial gases like Medical grade oxygen gas and liquid nitrogen. The gases are sold by the respondent in their own cylinders and also in the cylinders brought by the customers. In the case where the gases are sold by the respondent in their own cylinders, the respondent charged an amount towards cylinder rental in addition to the value of the goods. In the cases where the gases are sold in the cylinders belonging to the customers, wherever the customers request for testing and repair of the cylinder, it is done by the respondent and for which they charge some amounts which are in addition to the price for the gas supplied. The Department is of the view that the cylinder rental charges in the cases where the gases are supplied in the appellant's own cylinders and the cylinder repair and servicing/testing charges in the cases where the gases are supplied in the cylinders brought by the customers would be includible in the assessable value of the goods. It is on this basis that for the period from July 2000 to October 2003, the Jurisdictional Joint Commissioner vide order -in -original dated 30th September 2004 confirmed the duty demand of Rs. 6,04,269/ - against the respondent along with interest and imposed penalty of equal amount on them under Section 11 AC. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) vide impugned order -in -appeal dated 2nd March 2005 set aside the Joint Commissioner's order and allowed the appeal. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue. Heard both the sides.
(2.) SHRI Pramod Kumar, learned Jt. CDR, assailed the impugned order by reiterating the grounds of appeal and cited the judgment of the Tribunal in the case of CCE, Ghaziabad v. Modi Gas & Chemicals Ltd. reported in, 2010 (261) E.L.T. 1154 (Tri. -Del.), wherein following the judgment of the Tribunal in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur reported in : 2000 (121) E.L.T. 369 (Tribunal) it was held that the cylinder rentals in the cases where the gases are supplied in the cylinders owned by the manufacturer would be includible in the assessable value of the goods, that against the Tribunal's judgment in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur (supra), the assessee had filed an appeal before the Apex Court which had been dismissed and in view of the Apex Court's judgment in the case of Kunhayammed v. State of Kerala reported in : 2001 (129) E.L.T. 11 (S.C), the Supreme Court's order dismissing the civil appeal in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur (supra) would become a binding precedent. He, therefore, pleaded that the impugned order is not correct. Shri B.L. Narasimhan, Advocate, the learned Counsel for the respondent, pleaded that the fact that the gases manufactured by the respondent are being sold by them either in their own cylinders or in the cylinders brought by the customers shows that the gases manufactured are as marketable as such without being packed in any containers, that taking this fact into account, the Tribunal in the case of CCE, Indore v. Grasim Industries Ltd. reported in : 2014 (304) E.L.T. 310 (Tri. -Del.) relying upon the Apex Court's judgments in the cases of Hindustan Polymers v. CCE reported in : 1989 (43) E.L.T. 165 (S.C.) and also the judgment in case of Union of India v. Bombay Tyre International Ltd. reported in : 1983 (14) E.L.T. 1896 (S.C), had held that the cylinder rentals or cylinder repair/testing charges would not be includible in the assessable value of the gases, that in these judgments of the Tribunal, the Tribunal also considered its earlier judgment in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur (supra) relied upon by the Tribunal in its judgment in the case of CCE, Ghaziabad v. Modi Gas & Chemicals Ltd. (supra), that the Tribunal's judgment in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur (supra) is based on the fact that, the assessee were charging amounts towards cylinder rental and cylinder maintenance charges even from the customers who purchased oxygen gas manufactured by them in their own cylinders and the amounts charged as cylinder rental and cylinder maintenance charges were several times higher than the actual cost incurred and on this basis, the Revenue had alleged that part of the price of oxygen gas was being recovered as cylinder rental and maintenance charge and this allegation had been upheld by the Tribunal, and that in the present case there is no such allegation and, therefore, the judgment of the Tribunal in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur (supra) is not applicable. He, therefore, pleaded that there is no infirmity in the impugned order.
(3.) WE have considered the submissions from both the sides and perused the records.;