TMI Blog2009 (12) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... dent by its letter dated Feb., 2004, As no response was received, reminders were issued on 25th of Feb., 8th of March, 18th of March and 6th April of 2004. Meanwhile the respondents by its letter dated 22nd March, 2004 informed the concerned Range Superintendent that they were not charging any testing charges from their customers and they were only charging cylinder rent from their customers except those customers, who were purchasing gas in their own cylinders. The respondent by their further letter dated 7th April, 2004 informed the details of cylinder rent for the financial year 2002-03 and 2003-04 as Rs. 2,15,357/- and Rs. 2,19,954/- respectively. Consequently, show cause notice was issued on 8th June, 2004 requiring the respondent to show cause as to why sum of Rs. 69,650/- should not be demanded and recovered from them as excise duty for the said period along with interest thereon and as to why penalty should not be imposed. The respondent contested the proceedings and consequently, the order dated 31st August, 2004 came to be passed by the Adjudicating authority confirming the demand for Rs. 69,650/- along with interest thereon and imposition of penalty of equal amount. Bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ylinders. Further drawing our attention to the decision of the Apex Court in the matter of Collector of Central Excise v. Indian Oxygen Ltd. reported in 1988 (36) E.L.T. 730 (S.C.), Grasim Industries v. Commissioner of Central Excise, Indore reported in 2004 (164) E.L.T. 257 (Tri.-Del.) in the matter of Commissioner of Central Excise, Meerut-I v. Bisleri International Pvt. Ltd. reported in 2005 (186) E.L.T. 257 (S.C.) he submitted that the consistent view that has been taken in relation to the rental charges is that the same cannot form part of the price of the product. Considering the same, according to ld. Consultant, no fault can be found with the impugned order. 6. The ld. DR also drawn our attention to the decision in the matter of Kota Oxygen (P) Ltd. v. Commissioner of Central Excise, Jaipur reported in 2000 (121) E.L.T. 369 (Tribunal) and corresponding order of the Supreme Court reported in 2001 (128) E.L.T. A68 (S.C.). 7. Undisputedly the matter relates to the period subsequent to 1st July, 2000. Obviously, therefore, the provisions of law as it stood after 1st July, 2000 would apply and the assessable value and hence the same will have to be ascertained by considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer collect the amount from the buyers in connection with the sale of the product. To exclude such amount from the assessable value would virtually result in rewriting or amending the definition of the term expression transaction value in the said Act. 10. As rightly pointed out by the ld. DR, that the above situation is further clear from Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) 2000 Rule 6 read thus : Rule 6 Where the excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of Section 4 of the Act except the circumstance where the price is not the sole consideration for sale, the value of such goods shall be deemed to be the aggregate of such transaction value and the amount of money value of any additional consideration flowing directly or indirectly from the buyer to the assessee. Explanation........................ (i) ....................... (ii) ....................... (iii) Value of material consumed, including packaging materials in the production of such goods; 11. It is also pertinent to note that the Board in Circular dated 1st July, 2000 while dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority had decided the matter on the basis of the decision in Kota Oxygen (P) Ltd. case. In Kota Oxygen s case the Tribunal had held thus :- 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 own cylinders, as the price of those gases represented only the value of those gases and did not include any elements which are extraneous to the price of the goods. The entire removals should have been assessed at that price and duty demanded accordingly. The facts of the case also belie the appellants claim. The appellants invoices showed two collections at fixed rates under the headings cylinder maintenance charges and fixed rental charges . However, these levies were being made even in respect of sales where the goods were collected by the buyers in their own cylinders. That is to say cases which did not occasion such levy. Further, these co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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