TMI Blog2010 (11) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is from 1-1-97 to January, 2001. The appellants were collecting cylinder maintenance charges and cylinder rentals from their buyers. While cylinder maintenance charges at the rate of ₹ 2/- per Cu. Mtr. for Oxygen and ₹ 10 per Cu. Mtr. for dissolved acetylene, were being collected from all the buyers of gases including the buyers who were supplied gas in their own cylinders, the cylinder rental were being collected only from those buyers to whom the gases were supplied in the cylinders owned by the appellants. The Department was of the view that the cylinder maintenance charges and cylinder rental charges were includible in the assessable value of the gases, which the appellants were not including and accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above show cause notices were decided by the Joint Commissioner by a common order-in-original No. 23 to 29/CE/JP-II/2004 dated 6-8-2004 by which - (a) duty demand of ₹ 1,80,412/- for the period 1-1-97 to 30-6-2000 in respect of Cylinder Maintenance Charges of ₹ 10,34,752/- which represented the cost of Acetone used for dissolving the Acetylene was confirmed on the ground that the same is to be treated as an input and not the maintenance charges, (b) the remaining duty demand of ₹ 7,18,132/- for the period from 1-1-97 to 30-6-2000 pertaining to cylinder rental and charges for expenses incurred on repairing servicing of cylinders was dropped, (c) the entire duty demand of ₹ 1,15,155/- for the period from 1-7-2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 2. Heard both sides. 2.1 Shri Bipin Garg, ld. Counsel for the appellant, pleaded that the issue involved in this case is as to whether the maintenance charges being charged by the appellant from their customers in respect of sale of gases in cylinders are includible in the assessable value or not, that maintenance charges are being charged irrespective of whether the gases are supplied in the appellant s cylinders or customers cylinders, that the Department s allegation that bulk of the maintenance charges are nothing but the cost of Acetone had not been raised in the show cause notice and, hence, the same cannot be taken into account at the stage of adjudication, as it would amount to going beyond the show cause notice, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value and this fact was suppressed by the appellant from the Department, and (c) no duty paying documents were produced by the appellants before the Commissioner (Appeals) and hence there was no question of permitting the Modvat credit. He also emphasised that the penalty under Section 11AC has been righty upheld as the short payment of duty was on account of suppression of relevant facts on the part of the appellant. 9. We have carefully considered the submissions from both the sides and perused the records. The duty demand for the period from 1-1-97 to 30-6-2000 amounting to ₹ 8,98,544/- is on account of non-inclusion in the assessable value of cylinder maintenance charges which were being collected from all the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the Cylinder maintenance charges being collected from all the customers and which represented the value of the Acetone used for dissolving Acetylene are includible in the assessable value or not. 10. When the products being sold is dissolved Acetylene gas and the Acetylene gas for being marketed is required to be dissolved in Acetone, the Acetone would have been treated as an input for the Acetylene which is marketed and, therefore, we have no doubt that the cost of Acetone would be includible in the assessable value. Though in the show cause notices, the fact that the cylinder maintenance charges being collected from every customer, even when the Acetylene gas is sold in the cylinders brought by the customers are mainly the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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