TMI Blog2014 (4) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... me goods become marketable and can be sold only when packed in certain type of containers and testing of those containers is mandated by law, the testing charges of those containers would be includible in the value along with the cost of such containers if the containers are of durable and returnable nature, the amortized cost of the container including testing charges during the period of use would be includible in the assessable value - Cylinder testing charges are not includible in the assessable value of the liquid chlorine and there is no infirmity in the impugned order - Decided against Revenue. - Appeal No. E/1040/2005-EX[DB] - FINAL ORDER NO. 50770/2014 - Dated:- 12-2-2014 - Mr. G. Raghuram and Rakesh Kumar, JJ. For the Appellant : Ms. Shweta Bector, DR For the Respondent : Ms. Surbhi Sinha, Advocate JUDGEMENT Per Rakesh Kumar:- The facts giving rise to this appeal by the Revenue are in brief as under:- 1.1 The respondent are manufacturers of Caustic Soda, Liquid Chlorine, S.B.P etc. chargeable to Central Excise duty under various Headings of Chapter 28 of the Central Excise Tariff. The liquid Chlorine manufactured by the respondent is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this order of the Commissioner (Appeals), this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Ms. Shweta Bector, the learned DR, assailed the impugned order by reiterating the grounds of appeal in the Revenue s appeal and cited the judgment of Tribunal in case of Kota Oxygen (P)Ltd. Vs. CCE, Jaipur, reported in 2000(121) ELT-369 (Tribunal) wherein it was held that when acetylene gas was being sold by the Appellant at the same price irrespective of whether the gas was supplied in their own cylinders or in the cylinders brought by the customers, deduction from sale price of, Acetylene, the cylinder maintenance charges and fixed rental charges were not permissible. She also cited the judgment of Apex Court in case of CCE, Indore Vs. Grasim Industries Ltd., reported in 2009 (241) ELT-321(S.C.) wherein with regard to the provisions of section 4 during period w.e.f. 01.07.2000, Apex Court referred to Larger Bench the question as to whether the concept of transaction value in the new section 4 of the Central Excise Act, 1944, introduced w.e.f. 01.07.2000, makes any material departure from deemed normal price concept of erstwhile section 4(1)(a) of the Act and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, however, has held that irrespective of whether chlorine is sold by the Respondent in their own tonners or in the tonners brought by their customers, the testing charges of the tonners have to be treated as for the reason of or in connection with sale of Chlorine and same would be part of the transaction value of Chlorine, as periodical testing of the tonners is a mandatory requirement under Gas Cylinder Rules, 1981, and when periodical testing of the Cylinders/tonners is mandatory in connection with sale of Chlorine, the testing charges would have to be treated as charges for the reason of or in connection with sale of Chlorine. While the Commissioner (Appeals) has set aside this order of the Assistant Commissioner relying upon the Tribunals Judgment in the case of Punjab Alkalis Chemicals Ltd.(Supra), the Revenue has filed appeal against the order of the Commissioner (Appeals) by mainly reiterating the reasoning of the Assistant Commissioner and emphasizing that testing of tonners, in which chlorine is supplied, is a mandatory requirement and therefore the charges for testing of the tonners, even if the testing is done on the request of the customers, have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value. Apex Court in the case of M/s. Hindustan Polymers Vs Collector of Central Excise, reported in 1989(43) ELT-165(SC) while interpreting the provision of Section 4(4)(d) of the Section 4 of Central Excise Act, 1944, as it stood during period prior to 01.07.2000, has, relying upon its judgment in case of Bombay Tyre International, reported in 1983 (14) ELT-1896(SC), UOI Vs, Godfrey Philip India, reported in 1985(22) ELT-306(SC) and CCE Vs. Indian Oxygen Ltd., reported in 1986(36) ELT-370 (SC) held that: (a) Cost of packing is not includible in the value of excisable goods if the goods are marketable without being packed or contained in drums or containers and packing is not necessary for completion of manufacture of excisable goods; and (b) Where packing material is supplied by the customers/buyers The above judgment has been followed by the Apex Court in the cases of Jauss Polymers Ltd., reported in 2003(157) ELT- 623(SC) and CCE Vs. Superior Products, reported in 2008(230) ELT-3(SC). Though these judgments are in respect of the provision of Section 4 of Central Excise Act, 1944, as it stood during the period prior to 01.07.2000 and in which clause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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