TMI Blog2013 (11) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ses (P) Ltd., a company situated within their own premises - For manufacture and supply of Oxygen, the applicant has provided certain facility to M/s. Goyal MG Gases (P) Ltd. in their factory premises - the applicant has not only availed Cenvat Credit on the amount of excise duty paid on the Oxygen gas, but also availed Cenvat Credit on the duty paid on fixed facility charges, as a part of the value of the Oxygen gas - Prima facie the applicant could able to make out a prima facie case for total waiver of pre-deposit of dues - stay granted. - Appeal No..368/10 - ORDER NO.S-421/KOL/13 - Dated:- 1-7-2013 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. For the Appellant: Shri Abhishek Anand, Advocate For the Respondent: Shri S. Chakraborty, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew our attention to the meaning of facility charges as contained in Clause 1.9 of the agreement dated 17.03.2004. The Ld. Advocate says that by the meaning given to fixed facility charges in the said agreement it cannot be concluded that the said charges has no nexus with the manufacture and supply of Oxygen gas. It is his argument that the duty-paid at the level of the supplier of inputs cannot be questioned at the end of the receiver of the inputs, when the input is used in or in relation to the manufacture of finished goods. In support he has referred to various case laws and particularly the judgement of the Bangalore Bench of this Tribunal in the case of Commissioner of Central Excise, Hyderabad vs. Aurobindo Pharma Ltd.-2010(261) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgement is not applicable to the present case. 4. In his rejoinder Ld. Advocate has submitted that the facts of the present case are similar to the facts of the Aurobindo Pharma s case. It is his submission that in para 3 of the said judgement, it has been clearly mentioned that the appellant in that case were charging Rs.81,500/- per month as fixed facility charges, so obviously, the value of the liquid Nitrogen were raised in the invoices separately. Thus, the facts are similar to the present case. 5. Heard both sides and perused the record. We find that undisputedly the appellant are receiving Oxygen gas from M/s. Goyal MG Gases (P) Ltd., a company situated within their own premises under an agreement dt.17.3.2004. For manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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