RANJAN GOGOI,J. - (1.) The respondent - Assessees are manufacturers of dissolved and compressed industrial gases, liquid chlorine and other allied products. Cotton yarn and Post Mix Concentrate manufactured by two other individual assessees are also in issue. These articles are supplied to the customers in tonners, cylinders, carboys, paper cones and HDPE bags, BIBs, pipeline and canisters, which may be more conveniently referred to as "containers". In some cases the containers are provided by the Assessees to the customers on rent whereas in others the customers bring their own containers. For making available or for filling up the containers provided by the customers the Assessees charge the customers certain amounts under different heads viz. packing charges, wear and tear charges, facility charges, service charges, delivery and collection charges, rental charges, repair and testing charges. The Assessees treat the said amounts as their income from ancillary or allied ventures.
(2.) The issue arising is whether the aforesaid charges realised by the Assessees are liable to be taken into account for determination of value for the purpose of levy of duty in terms of Section 4 of the Central Excise Act, 1944 (hereinafter referred to as "the Act") as amended with effect from 1st July, 2000.
(3.) Perceiving a conflict between the two decisions of this court in Union of India and Ors. v. Bombay Tyre International Ltd. and Ors., (1984) 1 SCC 467 and Commissioner of Central Excise, Pondicherry v. Acer India Ltd., (2004) 8 SCC 173, a two judge Bench of this Court by order dated 30th July, 2009 [3*] referred the following questions for an answer by a larger bench: [3* (2009) 14 SCC 596] "1. Whether Section 4 of the Central Excise Act, 1944 (as substituted with effect from 1-7-2000) and the definition of "transaction value" in clause (d) of subsection (3) of Section 4 are subject to Section 3 of the Act 2. Whether Sections 3 and 4 of the Central Excise Act, despite being interlinked, operate in different fields and what is their real scope and ambit? 3. Whether the concept of "transaction value" makes any material departure from the deemed normal price concept of the erstwhile Section 4(1)(a) of the Act?";