1987 (2) TMI 270 - AT - Central Excise

Summary

Issues:
Valuation of Oxygen Gas for Central Excise duty based on sale price to related party, consideration of mutuality of interest between parties, exclusion of selling costs and profits from assessable value, treatment of durable containers in pricing, application of Supreme Court judgments on corporate veil lifting.

Analysis:

The case involved the appellants selling Oxygen Gas to a related party, M/s. Rishi Gases, at a price of 70 paise per cubic meter, which was considered by lower authorities as not at arm's length. The authorities valued the Gas based on the sale price to another party, Asiatic Oxygen, ranging from Rs. 4.665 to Rs. 5.701 per m3. The appellants contended lack of mutuality of interest between them and the related parties, citing a Supreme Court judgment. The Tribunal found that the related party test was not met, but upheld the rejection of the 70 paise price due to factors like excluding selling costs, investment by Rishi Gases in compressing plant, and borne expenses by Rishi Gases.

The Tribunal noted that the sale to Rishi Gases was a paper transaction aimed at suppressing the real value of Oxygen Gas, as evident from various circumstances like exclusive dealings with Rishi Gases, absence of gas cylinders, and shared office premises with Asiatic Oxygen. The Tribunal agreed with the department's argument of lifting the corporate veil to reveal the artificial nature of the transaction with Rishi Gases, deeming it a colorable device.

Regarding the pricing based on transactions with Asiatic Oxygen, the Tribunal held that the price of Rs. 3.25 per m3 was reasonable after considering factors like cylinder costs, transport expenses, and profits of Asiatic Oxygen. The Tribunal relied on a Karnataka High Court judgment to support the exclusion of costs related to durable containers supplied by customers. The Tribunal modified the valuation method to consider the purchase price of Oxygen Gas by Asiatic Oxygen from the appellants, rejecting the sale price as the basis for assessment of central excise duty.

In conclusion, the Tribunal modified the lower orders to base the valuation on the purchase price by Asiatic Oxygen, upholding the rejection of the 70 paise price to Rishi Gases. The Tribunal emphasized the importance of considering all relevant factors in determining the assessable value for Central Excise duty, including the exclusion of certain costs and the commercial reasonableness of the pricing.