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2023 (6) TMI 849 - CESTAT CHENNAISupply of tangible goods service - Fixed Facility Charges collected by the appellant for supply of tanks for storing the liquid gases - period of dispute is from 16.05.2008 to March 2009 - HELD THAT:- The appellant entertained doubts as to whether FFC has to be included in assessable value for discharging excise duty and also whether credit can be availed of such duty. Though letters were issued to department seeking clarifications, there was no response. The appellant then filed W.P before Hon’ble High Court of Bombay in INOX AIR PRODUCTS LTD. VERSUS UNION OF INDIA [2014 (9) TMI 529 - BOMBAY HIGH COURT], the Hon’ble High Court directed the Board to issue clarification. Pursuant to this, the Board vide circular dt. 10.11.2014 has clarified that FFC charges has to be included in the assessable value for discharging cenvat credit. It can be seen that ownership of the tanks remains with the appellant and the possession and effective control of the tanks is with the customers during full term of the agreement. The definition of “supply of tangible goods” as per section 65 (zzzzj) defines as “any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances”. In the peculiar nature of the products, the appellant has to supply tanks before supply of liquid gases to the customers. Thus the assessee is required to include the value of FFC and MOTP in the transaction value of the gases for discharging the Central Excise duty. There are no reason to hold that FFC charges are in the nature of consideration received by appellant for providing supply of tangible goods. Appeal allowed.
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