TMI Blog2009 (3) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty paid on inputs and capital goods. They are using liquid nitrogen as an input in the manufacture of final products and are availing Cenvat credit of duty paid on the same. They procured the said input from M/s. Inox Air Products, Butibori and M/s. BOC India Limited. They obtained three special storage tanks from M/s. Inox Air Products on rental basis for storage of liquid nitrogen. M/s. Inox Air Products are collecting rental and maintenance charges for storage tanks in the form of fixed facility charges @ Rs. 81,500/- per month. M/s. Inox Air Products are paying Central Excise duty on the said Fixed Facility Charges and the appellants are taking Cenvat credit of such duty. During the period from July, 2006 to March, 2007, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals). Learned Commissioner (Appeals) after going through the case records and oral and written submissions made by the respondents before him, concluded that the impugned OIOs are incorrect and he set aside the same. Aggrieved by such an Order, the Revenue is in appeal. In both the appeals, the contentions of the Revenue are as under : The assessees are manufacturers of bulk drugs and are availing Cenvat credit of duty paid on inputs and capital goods. They are using liquid nitrogen as an input in the manufacture of final products and are availing Cenvat credit of duty paid on the same. They have also obtained special storage tanks for storage of the liquid nitrogen on which they are paying rental charges, i.e. fixed facili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is paid and reflected in the invoice, the assessee is eligible to take credit as held by the Commissioner (A). The manufacturer is entitled for credit of duty paid only on the inputs/capital goods used in or in relation to manufacture of final products, under Rule 3 of Cenvat Credit Rules, 2004. Hence, the assessee is not entitled to Cenvat credit on the duty paid on fixed facility charges under Rule 3 of the Cenvat Credit Rules, 2004. 5. The learned counsel appearing on behalf of the respondents would submit that the issue is now squarely covered by the decision of the Tribunal in the case of Inox Air Products Ltd. v. CCE, Mumbai [2002 (144) E.L.T. 359 (Tri.-Mum.)]. He would also rely upon on the following decisions of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court s decision where the dispute is with regard to inclusion of cylinder charges in the assessable value wherein it was held that the same are not includible in the value. In the instant case, if Fixed Facility Charges are not includible in the value of input, then action is required to be taken at the supplier s end and not on the Appellants. When Excise duty is paid and reflected in the invoice, the Appellants are eligible to take credit of the same. There is no dispute regarding payment of duty by the supplier. The Appellants had taken credit of whatever duty was shown in the invoice. The decisions in case laws cited at Sl. No. (iv) to (vi) in para supra and relied upon by the Appellants also support the same view. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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