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2023 (12) TMI 839 - CESTAT KOLKATAValuation of Excise Duty - 'facility charges' collected by the Appellant from TISCO is includable in the assessable value or not - invocation of extended period of limitation - HELD THAT:- The ‘facility charges' are recovered from TISCO in terms of Para 7.15.2 of the agreement. These charges are payable towards the fixed assets developed/ deployed and the operation and maintenance of the same, irrespective of the supply of DM water. The Appellant submits that they were under the bonafide belief that the same did not merit inclusion in the assessable value. It is observed that contention of the Appellant is supported by the decision of the Tribunal, Kolkata in the case of BOC INDIA VERSUS COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR [2004 (11) TMI 219 - CESTAT, KOLKATA]. In the said decision, the Tribunal kolkata has held that the 'facility charges' collected by the assessee from those customers on whose factory they have erected and maintained Vacuum Insulated Storage Tank, is not includable in the assessable value as these charges are no way connected with the sale of gases. Extended period of limitation - HELD THAT:- There are merit in the contention of the Appellant that there is no suppression of fact involved in this case. It is observed that penalty cannot be imposed when the Appellant is acting under a bona fide belief - the extended period of limitation is not invocable in this case and for the same reason no penalty imposable on the Appellant. The demand of duty confirmed in the impugned order and the penalty imposed set aside, by invoking the extended period of limitation.
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