TMI Blog2014 (5) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has been upheld only on the amounts being collected as Cylinder Maintenance Charges which are the cost of Acetone used for dissolving Acetylene gas and since from the records of the case it is clear that the appellant had suppressed the fact that in case of Acetylene, the bulk of the amount collected as “cylinder maintenance charges” was the cost of Acetone and therefore, there was no infirmity in imposing of penalty and sustaining the same by the CESTAT. The aforesaid penalty has been levied after analyzing the facts on record and is on the material based on appreciation of the facts on record and in our view, the said cannot be said to be involving a substantial question of law much less a substantial question of law - Decided against assessee. - DB Central Excise Appeal No. 30/2011 - - - Dated:- 31-3-2014 - Ajay Rastogi And J. K. Ranka,JJ. For the Appellant : Mr. PK Kasliwal For the Respondent : None ORDER By The Court (Per Hon. Ranka,J.): 1. Instant Central Excise Appeal u/Sec. 35G of Central Excise Act, 1944 (for short, CE Act') is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, Principal Bench, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the buyers in the name of the maintenance charges. Though during the course of adjudication and after much persuasion, the assessee came out with the fact that it had collected the additional consideration of Rs.36,16,511/- in the name of maintenance and depreciation charges but insisted that these were maintenance charges. 4. It was also noticed by the revenue authorities during the course of adjudication proceedings that addition of Acetone in Dissolved Acetylene Gas Cylinder has nothing to do with the maintenance of cylinders but it works as a compressing agent to facilitate flow-out of Dissolved Acetylene Gas from the cylinder and this fact was never revealed to the department and the assessee was not including its (i.e. Acetone's) cost in the assessable value. The adjudicating authority accordingly, on the basis of judgment rendered by the Hon'ble Apex Court in the case of M/s Kota Oxygen (P) Ltd. Vs. Commissioner, reported in 2001 (128) ELT A 68, held that the cylinder maintenance charges so also rental charges are certainly required to be included in the assessable value of the goods and in view of this decision, the assessable value for the purpose of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the assessee has a good case for deletion of penalty and contended that substantial question of law arises for consideration and needs consideration of this Court. 8. We have considered the arguments advanced by counsel for the appellant and perused the impugned order so also the other orders passed by the adjudicating authorities. 9. It would be fruitful to quote Section 11AC of the CE Act, as it stood then, which is reproduced ad-infra:- 1[11AC. Penalty for short-levy or non-levy of duty in certain cases.-- Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined: 2[Provided that where such duty as determined under sub-section (2) of section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not at all disclosed by the appellant in the facts disclosed during the course of their filing of the return in Form RT-12. Not only in the said returns but also later on, when questioned on the basis of the audit undertaken by the audit team of AG Rajasthan, the assessee went on denying the said facts and as observed by the AO, after much persuasion, came with the figures from the books of accounts. The said charges were within special knowledge of the appellant and if two views were possible, as claimed by the appellant, then, at least, it could have disclosed the figures and could have put a note that in view of the view, favourable to the assessee, the said amount is not required to be included and thus no duty is leviable on such amount collected by the appellant. However, as observed herein above, nothing was disclosed and the appellant continued to object the very levy of the said inclusions. The Assessing Officer, in its order dt. 06/08/2004, while levying the excise duty so also levying penalty, has observed about the judgment rendered by the Hon'ble Apex Court in the case of M/s Kota Oxygen (P) Ltd. Vs. Commissioner (supra) and in view of the same, the said amounts w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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