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Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO. 3
Excise Appeal No. 922 of 2012-DB
(Arising out of OIA-79/2012/AHD-I/CE/AK/COMMR-A-/AHD Dated-26/09/2012 passed by Commissioner of Central Excise-AHMEDABAD-I)
Aims Industries Ltd ........Appellant
L K Patel Timber Mart, B/H, Lake View Hotel, Narol, Ahmedabad, Gujarat
VERSUS
C.C.E.-Ahmedabad-i ........Respondent
C. Ex Bhavan, Nr Panjrapole & Polytechnic, Ambavadi, Ahmedabad, Gujarat-380015
APPEARANCE:
Shri. Saurabh Dixit, Advocate for the Appellant Shri. Prakash Kumar Singh, Authorized Representative for the Respondent
CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) Final Order No. A/11194 /2022
DATE OF HEARING:03.10.2022
DATE OF DECISION:03.10.2022
RAMESH NAIR
The issue involved is that whether the retention charges of Cylinders wherein the final product viz gas supplied to the Customer beyond the stipulated period is includible in the assessable value of the gas.
2. Shri Saurabh Dixit, Learned Counsel appearing on behalf of the appellant submits that the very issue has been decided in the case of their own different factory wherein this Tribunal has vide Final Order No. A/10679-10681/2019 dated 03.04.2019 decided the issue in favour of the assessee.
3. On the other hand, Shri. Prakash Kumar Singh, Learned Superintendent (AR) appearing for the Revenue fairly concedes that on inquiry from the respondent Commissioner it was informed that the
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2 | P a g e E / 9 2 2 / 2 0 1 2 - D B department has accepted the Tribunal's order No. A/10679-10681/2019 dated 03.04.2019.
4. On careful consideration of the submission made by both the sides and perusal of the records. We find that the issue that whether the retention charges of cylinder wherein the gas is supplied by the appellant after the stipulated time should be included in the assessable value of the gas or otherwise. We find that the same issue has been decided in the appellant's own case for their different factory vide Tribunal's order dated 03.04.2019 (Supra). In the said decision various Judgments including the Supreme Court judgment in the case of Grasim Industries Ltd was considered. The order dated 03.04.2019 is reproduced below:-
"The issue involved is that whether the retention/detention charges recovered by the appellant beyond the stipulated time period is required to be included in the transaction value of the gas sold in the packed cylinders.
2. Shri Saurabh Dixit, Ld. Counsel appearing on behalf of the appellant submits that the very same issue has been decided in the catena of judgments which as follows:
1. BOC India Ltd. 2004 (175) ELT 236(Tri.-Kol.)
2. Govind Poy Oxygen Ltd. 2008 (231) ELT 299 (Tri. Mum)
3. Inox Air Products Ltd. 2016(336) ELT 316 (Tri.-Mum.)
4. Indian Air Gases Ltd. 2015 (318) ELT 434 (T)
5. Goyal M.G. Gases P. Ltd. 2014(309) E.L.T. 327 (Tri.-Del.)
6. Grasim Industries Ltd. 2009 (241) ELT 321(SC)
7. Grasim Industries Ltd. 2016 (334) ELT 385 (SC)
8. Grasim Industries Ltd. 2018(360) ELT 769(SC)
2.1 He further submits that the same issue has been finally settled by the 5 judges bench of larger bench of Supreme Court in the case of Grasim Industries Ltd. 2018 (360) ELT 769 (SC).
3. Shri Amit Kumar Mishra, Ld. Jt. Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
4. Heard both sides and perused the records. We find that the issue no longer res integra in the light of various judgments cited by the Ld. Counsel. In our view, retention/detention charges is not a part of the sale price. It is only charged when the customers retain/detain the cylinders beyond the period stipulated by the appellant. Accordingly, the retention/detention charges are not includable in the transaction value of the excisable goods namely gas sold, duly packed, in the gas cylinders. Following the ratio of the judgments, impugned order is set aside. The appeals are allowed."
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3 | P a g e E / 9 2 2 / 2 0 1 2 - D B In view of the above decision of this Tribunal which is based on the Hon'ble Supreme Court judgment in case of Grasim Industries Ltd the issue is no longer Res-Integra, therefore, the impugned order is not sustainable.
5. Accordingly, the impugned order is set aside, appeal is allowed. (Dictated & Pronounced in the open court)
(RAMESH NAIR)
MEMBER (JUDICIAL)
(RAJU)
MEMBER (TECHNICAL)
PRACHI
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