TMI Blog2000 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... s from others. The dispute is with regard to the appellants claim for deduction of cylinder maintenance charges and fixed rental charges of cylinders while fixing the assessable value of gases. The period involved is March, 1994 to March, 1997. 2. Gases were liable to central excise duty at specific rates up to 1-3-1994. Therefore, till 1-3-1994, the value of cylinders used for packing and the cost of maintenance of cylinders were not relevant to the collection of central excise duty on the gases. During this period, appellants were charging the same price for gas from their buyers irrespective of whether gas was delivered in cylinders supplied by the buyers of the gas or gas was supplied in the cylinders owned or hired by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also settled law that no duty is demandable on the differential amount between the actual expenses on these heads and the amount actually collected, the additional amount, if any, being earned from an ancillary activity and not relatable to manufacture of the gases. They have relied upon the decision of the Supreme Court in Collector of Central Excise v. Indian Oxygen Ltd. [1988 (36) E.L.T. 730 (S.C.)] and final order of the Tribunal Nos. 348-355/2000-A, dated 6-6-2000 [2000 (119) E.L.T. 565 (Tribunal)] in the case of M/s. Gomti Carbon Dioxide, Kanpur Others. With regard to time-bar, they have submitted that the deductions claimed were indicated in the invoices themselves and therefore, question of suppression of facts or mis-declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards cylinder maintenance and cylinder rental are profits from incidental or ancillary activities has no factual basis, firstly because there was no occasion or justification to make such collections from buyers who collected the gases in their own cylinders. Secondly, such collections from others were also not towards such services. This is clear from the data itself. For the year 1994-1995, the appellants collected over Rs. 13 lakhs towards cylinder maintenance charges while the expenditure was only Rs. 86,000/-. In 1995-1996, the appellants collected over Rs. 10 lakhs in the name of cylinder maintenance while the expenditure was only Rs. 2.7 lakhs and in 1996-1997, the appellants collected over Rs. 12 lakhs towards this charge while exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants still made the collections from them. It is also relevant that the appellants collections under these headings had no relation whatsoever to the costs involved. The data shows that collections were made even from buyers who did not avail of the service and also that collections bore no ratio or relation to the costs involved in those services. 8. It is settled law that if ex-factory wholesale price is available, that should be the assessable value. In the present case, the goods were being sold at ex-factory basis. Therefore, that value should have been adopted as the assessable value for all clearances. No deduction was also required to be made from the price at which gases were sold to dealers who purchased them in their o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustifying raising of demand for the extended period as permitted under proviso to Section 11A(1). The invoices covering the sales which were submitted to the central excise authorities also, indicated a different arrangement than the actual one - even when delivery of gases was in the buyer s cylinders and the price did not include payment for any other services, part of the price was shown in the invoices as representing maintenance and cylinder fixed rentals. These circumstances fully justify the allegation of intentional evasion of duty. Consequentially, the demand of duty and penalty under Rule 173Q are confirmed. With regard to penalty under Section 11AC of the Central Excise Act, we find that this section was not in force during most ..... X X X X Extracts X X X X X X X X Extracts X X X X
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