INOX AIR PRODUCTS LTD. Vs. C.C.E. & S.T., PONDICHERRY
LAWS(CE)-2015-5-15
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 18,2015

INOX AIR PRODUCTS LTD. Appellant
VERSUS
C.C.E. And S.T., Pondicherry Respondents

JUDGEMENT

R.PERIASAMI - (1.)THE applicant filed this application for waiver of pre -deposit of service tax of Rs. 10,79,156/ - demanded under supply of tangible goods service for the period 16 -5 -2008 to 31 -3 -2009.
(2.)Applicants are engaged in the manufacture of industrial gases and for this purpose, they have entered into an agreement with the buyers, where they have specially built "Vacuum Insulated Transport Tanks" (VIST) at the customers site and maintain the same. They receive "Fixed Facility Charges" (FFC) from the customers. The ld. Advocate submits that once excise duty is paid and the VAT is discharged on FFC, again service tax cannot be demanded on the same transaction value. FFC charge already included in the transaction value on the supply of gases for payment of excise duty. He relied upon the decision of the Bangalore Bench of this Tribunal in their own case M/s. Inox Air Products Ltd. v. CST, Bangalore reported in, 2014 -TIOL -1984 -CESTAT -Bang. and pleaded for waiver of pre -deposit. On the other hand, the ld. AR reiterated the findings of the Adjudicating Authority and submits that even if excise duty is paid and VAT is discharged service tax is demandable on supply of tangible goods which is specifically covered under the Finance Act in terms of Section 65(zzzzj).
After hearing both sides and on perusal of the supplementary invoice dated 31 -5 -2008 and 30 -9 -2008, we find that the applicant has discharged the excise duty on the value of FFC of Rs. 20,000/ - per month, the same has been recorded in OIO. By relying the decision of the Tribunal Bangalore Bench in the applicant's own case (supra), on the identical issue where the stay was granted, we find that prima facie, the applicant has made out a case for waiver of pre -deposit of service tax. Accordingly, the pre -deposit of the entire demand is waived and its recovery stayed during the disposal of the appeal. Stay application is allowed.

(Dictated and pronounced in open Court)

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