TMI Blog2019 (1) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in Article-12. Clauses at 1.21; 1.35 and 15.6 of the Agreement make it amply clear that the consideration paid, including the Fixed facility charges, is towards the supply of gases. The agreement does not make it very categorical as to whether the Fixed Facility Charges are in respect of Pipelines, Flow Meters, Valves, etc. installed in the premises of SAIL-VISP and maintained by the appellants. Therefore, there is some element of doubt which exists as to whether the Fixed Facility Charges are also for the installations which are primarily in the premises of the appellants and for production of Gases. In case if a portion of the Fixed Facility Charges pertained to the production facilities installed in the premises of the appellants, it has to be understood to have some nexus with the production of Gases. No prudent customer would pay such charges for the production of the material in the appellant’s factory and to purchase the same at the market price. It is pertinent to note that the Ld. counsel for the appellants has submitted that the Fixed Facilities were partly inside the MSPL premises and substantially in the premises of SAIL-VISP. Further, as per clause 1.35, the Fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, E/27699-27702/2013, E/22580/2014, E/21159, 21160, 21242/2017 - Final Order No. 20022-20030/2018 - Dated:- 10-1-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER M.S. Nagaraja, Advocate For the Appellant Dr. J. Harish, AR For the Respondent Per: P. ANJANI KUMAR Appeal No Impugned Order Period of dispute Duty / Penalty (Rs) E/866/2008 3/CCE/2008 / 5.9.2008 Aug 06 - Sept 07 1,07,05,948/ equal penalty E/27699/13 MYS-EXCUS-000-DIVN-APP-BRC-002-13-14 / 14.6.2013 Oct 07 Nov 08 1,00,78,550/ 7,000 E/27700/13 MYS-EXCUS-000-DIVN-APP-BRC-002-13-14 / 14.6.2013 Dec 08 -Jun 10 81,21,550/ 95,000 E/27701/13 MYS-EXCUS-000-DIVN-APP-BRC-002-13-14 / 14.6.2013 July 10 May 11 53,81,750/ 55,000 E/27702/13 MYS-EXCUS-000-DIVN-APP-BRC-002-13-14 / 14.6.2013 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... periodical SCNs were issued by lower authorities and were confirmed and upheld by Commissioner (appeals). Hence, these 9 appeals were filed. 3. The Ld. Counsel for the appellants submitted that as per the Agreement dated 11.08.2005 with SAIL-VISP; the appellants provided the fixed facilities as follows. (a). Storage Tanks for Gaseous Oxygen, Liquid Oxygen [100 KL and 10 KL capacity), Liquid Nitrogen and Liquid Argon, Pumping and Vaporization systems for Oxygen, Nitrogen (MP) and Argon. ( Article 9.1 of the Agreement) (b). Storage tanks, pumps, vaporizers for liquid Oxygen, Nitrogen and Argon and maintaining a minimum safety stock as indicated at Annexure-V for meeting the fluctuating demand pattern and to provide back up for uninterrupted supply of Gases during shut down/break down periods of production facilities and during power interruptions. (Article 9.3.1) (c). Flow meters/flow computer for measuring gases and maintain, repair and replace them. (Article 9.4.1 9.4.3). (d). Instruments of Gas Purity Analyzer and Gas pressure. (Article 9.4.2). (e). the testing, calibrating equipment and standard gas during joint calibration of the meters and installat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Agreement, the FFC are paid for the supply of gases the commencement of payment is also linked to the start of regular supply of gases. The Agreement should be read as a whole to understand the pith and substance or purpose of the Agreement. The Price of Gases is determined in terms of Article 12 and the Fixed Facility Charges are payable as specified in Article 13. The FFC is payable irrespective of whether the Oxygen and other gases was supplied or not and irrespective of the quantum of gas supplied. There is no nexus between oxygen gas sold and the FFC received by the appellants. 3.2. The Commissioner concluded in (Para 41.4) that the Fixed Facilities include the plant and equipment for producing Oxygen with all accessories like storage tanks, pipe lines, flow meters, instruments for analyzing purity of gases, pumps, etc and these facilities are within the boundaries of MSPL. The findings are clearly contrary to evidence on record. Air Separation Unit and other ancillary equipment required for manufacture of gases were within the area leased to MSPL for setting up the plant and has nothing to do with the facilities described in Article 9 as being in the SELLER S SCOPE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Oxygen gas is completely misplaced. 4. The Ld. counsel submitted that the SCN and the adjudicating authority have not doubted or rejected the transaction value/ price of Oxygen gas determined in terms of Article 12 of the Agreement on which excise duty has been paid. The Appellants submit that Rule 6 of the Central Excise Valuation Rules, 2000 provides that where the price is not the sole consideration for sale, the assessable value of the goods would be deemed to be the transaction value plus any amount received by the seller as additional consideration directly or indirectly from the buyer. Therefore, in order to include any amount as additional consideration in terms of Rule 6 of the Central Excise Valuation Rules, 2000it must be shown that: (i) the price or transaction value received is not the sole consideration and hence the value cannot be determined in terms of Section 4 (1) (a) of the CEA, 1944 and that the value is to be determined in terms of Section 4 (1) (b) read with the Central Excise Valuation Rules, 2000, (ii) the amount proposed to be included in the value of goods manufactured and sold is an additional consideration received by reason of or in connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no supply of Oxygen gas. There are a number of periods when there was no supply of gas at all. Still VISP has paid FFC as per the terms of the Agreement. In such a situation, it cannot be said that the price of Oxygen gas was not the sole consideration and that FFC is an additional consideration for the gas sold. When there was no manufacture and sale of Gas the mere payment of the FFC by SAIL VISP cannot be treated as additional consideration and subject the same to levy of excise duty. Therefore, it is conclusively established that the there is no nexus with the price of Oxygen gas sold and Fixed Facility Charges. 5. The Hon ble Supreme Court in the case of CCEVs Indian Oxygen Ltd - 1988 (36) ELT 730 (SC), has held that It is well-settled that the levy under the Act, is on the manufacture. In the instant case the respondent are manufacturers of gas which is subject to excise duty, but this gas is supplied in gas cylinder. The activity of supply of cylinders is not an activity of manufacturing of gas therefore anything charged for it would not be a price for manufacture of gas. These might be profits or gains, if any, of any ancillary or allied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities and has no nexus with the manufacture of gases. The Tribunal has recorded that similar view was taken by the Commissioner of Central Excise (Appeals) Chennai in his Order-in-Appeal No 666/6/M-1 dated 24.10.2001 and by the Additional Commissioner of Central Excise, Bangalore III in his Order No 19/2002 dated 31.07.2002. The Tribunal has recorded that the Department has accepted the order passed by the Commissioner, Mumbai II. The Tribunal further relied on the judgment in the case of Indian Oxygen Ltd (supra) and Grasim Industries Ltd - 2004 (164) ELT 257 (T) and held that the judgment of the Hon ble Supreme Court even after 01.07.2000 applies to the facts of the case. The Tribunal relying on the judgment of the Mumbai Bench in the case of Inox Air Products Ltd. v. CCE, Mumbai-VII - 2002 (144) E.L.T. 359 (Tri.-Mumbai) and Grasim Industries (infra) held that the fixed facility charges are not liable to excise duty. 5.1. The Appellants further rely on the following judgments: (i) CCE, Indore Vs Grasim Industries Ltd 2014 (304) ELT 310 (T-Del) (ii) CCE, Raigarh /Belapur Vs Inox Air Products 2016 (336) ELT 316 (T) (iii) Goyal M G Gases Ltd Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 4(3)(d) of the Act would be subject to the charging provisions contained in Section 3 of the Act will have to be viewed in the context of a situation where an addition of the value of a non-dutiable item was sought to be made to the value of a dutiable item for the purpose of determination of the transaction value of the composite item. This is the limited context in which the subservience of Section 4(3)(d) to Section 3 of the Act was expressed and has to be understood. If so understood, we do not see how the views expressed in paragraph 84 of Acer India Ltd. (supra) can be read to be in conflict with the decision of Bombay Tyre International Ltd. (supra). 23. Accordingly, we answer the reference by holding that the measure of the levy contemplated in Section 4 of the Act will not be controlled by the nature of the levy. So long a reasonable nexus is discernible between the measure and the nature of the levy both Section 3 and 4 would operate in their respective fields as indicated above. The view expressed in Bombay Tyre International Ltd. (supra) is the correct exposition of the law in this regard. Further, we hold that transaction value as defined in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to levy of excise duty. Therefore, the principles laid down in the case of CCE Vs Indian Oxygen Ltd 1988 (36) ELT 730 (SC) that the manufacture and sale of gas and renting of cylinders are separate and independent transactions and that the rental would not be price for the manufacture and would not constitute assessable value is valid and binding. This decision has been followed consistently since then. Since the Fixed Facility Charges are rentals/consideration for the pipelines, storage tanks, flow meters, etc provided to SAIL VISP for their use the same is not a consideration for the gas manufactured and sold and hence cannot be included in the value of gas. The impugned order contrary to the facts and law is required to be set aside. 5.5. The Counsel further submitted that the Department has contended in a number of similar cases that the Fixed Facility Charges have no nexus with the volume or value of gas supplied because the FFC is payable irrespective of the quantity of gas supplied and even when gas is not supplied. Such charges are purely rental and maintenance charges for the storage tanks. Therefore, the excise duty paid on such FFC was admissible as credit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing different excisable goods are situated in the same premises. The Revenue is treating them as different factory only on account of appellants taking three registrations under Rule 174 of the Central Excise Rules. The number of registrations, in our view, will not decide the number of factories unless and until they are situated in different premises. It is very clear from the definition of the term factories that all the three units will be regarded as one factory as all the excisable goods are manufactured in the same premises. Similar views were expressed by the Appellate Tribunal in the case of J.K. Synthetics Ltd. (supra) wherein it was held that as two units fall within the same premises within one boundary wall encircling the entire area of the land allotted to the appellants in the industrial area the appellant is entitled to obtain one consolidated licence for the manufacture of its goods within its factory complex as the object behind the grant of consolidated licence is that any person manufacturing different excisable goods within one factory area is entitled to obtain one licence instead of different licences for different commodities. 6.1. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in this connection. The Appellants submit that they have installed, operated and maintained various pipelines, storage tanks, flow meters, Flow Indicators, etc on Build-Own-Operate (BOO) basis for use by SAIL VISP in terms of the Agreement dated 11.8.2005. The goods and facilities are under the possession and control of the Appellants. There is no transfer of right to use, or possession or control over the goods. On termination of the Agreement, the goods have to be removed from the factory of VISP. Therefore, the said activity for a consideration payable in the form of FFC amounts to rendering of taxable service under the classification of Supply of Tangible Goods as defined under Section 65(105)(zzzzj) of the Finance Act, 1994 from 16.05.2008. The Commissioner has recorded his finding in this regard in Para 41.13 of the impugned order rejecting the contention that the activity was liable to service tax on the ground that the goods and facilities fixed to earth were not goods and when they are removed and dismantled they will no longer be goods. The findings of the Commissioner are contrary to facts and law. The pipelines, storage tanks, flow meters, flow indicators, etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (320) ELT 22 (SC) (ii) Punjab Tractors Ltd, Chandigarh Vs CC 2005 (181) ELT 380 (SC) (iii) CCE Vs Narayan Poly plast 2003 (179) ELT 20 (SC). 8.1. The Appellants submit that it is now well settled law that where payment of duty results in a situation of revenue neutrality, there is no justification for demanding duty. Therefore, the finding in the impugned order is capricious and unsustainable. 9. The Appellants submit that the SCN issued on 14.2.2008 proposed to demand differential duty on the FFC for the period from August 2006 to September 2007 by invoking the larger period of limitation. The issue relates to valuation of gases and classification of the activity by the Appellants. It is submitted that the judgments referred above clearly show that the activity of installation, operation, maintenance of storage tanks, vaporizer, pipelines, flow meters, measurement gauges, etc. for exclusive use by SAIL VISP on BOO basis is a service and the Fixed Facility Charges are in the nature of rentals. The Appellants had voluntarily applied for issue of Service Tax Registration under supply of tangible goods on 06.08.08 to the Jurisdictional Superintendent of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further the judgment of the Tribunal in the case of BOC India and Grasim Industries (supra) was taken before the Hon Supreme Court and the issues therein were referred to the larger Bench of the Hon Supreme court. The Larger bench in the case of Grasim Industries (supra) has now held that there is no discernible difference in the statutory concept of transaction value and the judicially evolved meaning of normal price and has concurred with the views in the case of Bombay Tyre International Ltd. It is thus clear that the method of valuation of the goods was hazy and subject matter of prolonged litigation. Therefore, the Appellants could not be faulted for believing that the FFC was not liable to excise duty. The Appellants rely on the following judgments: (i) Sanjay Industrial Corporation Vs CCE, Mumbai 2015 (318) ELT 15 (SC) (ii) Jaiprakash Industries Ltd Vs CCE, Chandigarh 2002(146) ELT 481(SC) (iii) Kiran Ispat Udyog Vs CCE, Rajkot 2015 (321) ELT 182 (SC) (iv) Larsen Toubro Ltd Vs CCE, Pune 2007 (211) ELT 513 (SC) 10. The Ld. Counsel further submitted that the grounds and the basis for the demand of excise duty on the Fixed Facility Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant as confirmed vide Para 2 of the Commissioner s letter dated 11.08.2008 (page 141 of APPEAL PAPER BOOK) which is based on the Range Superintendent verification report. Thus the said facility set up is an independent facility on the rented /leased out land provided for manufacture of gases. This is made clear by the appellant having obtained the requisite approvals, licenses and Central Excise Registration towards the activity of manufacture. The assesse has also availed the Cenvat Credit towards the facility to the extent of ₹ 1,10,32,894/- as is discussed by the Commissioner at Para 41.7 of the impugned order. The appellant has been harping on the non availment of Cenvat credit as verified by the Range Superintendent which is towards the interconnecting pipelines beyond the premises of MSPL and the same is only as per law as the said goods are not within the premises of the Manufacturer. Also there is no dispute about the aforesaid Cenvat credit amount of ₹ 1, 10, 32,894 being towards the Oxygen plant set up in the registered premises of the manufacturer. Thus the cost recovery being done towards this plant which they are operating on BOO (Build-Own -Operate) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.3. Regarding the applicability of Notification 67/95 he submitted that at the outset this is a fresh ground being taken now in appeal before CESTAT and has not been agitated before the adjudicating authority. The said notification would be inapplicable as the assessee being an independent manufacturer has not produced any interim inputs which go into a taxable final product to avail exemption. The Assessee has manufactured Gases from Air and there are no interim inputs. The arguments and case laws cited in support of the fact that FACTORY has to be considered towards all units within the same premises can be distinguished as follows. (i). Dhampur sugar mills -2001(129) ELT 73-TRI-del: The said case covers a scenario of multiple divisions of the same entity who have obtained independent central excise registrations. In the instant case we have two different entities functioning under independent registrations. (ii). Commr of CEx Vs Mukund Ltd-2015(324)ELT 387 Kar: The said case deals with the availment of Cenvat Credit by one of the Steel manufactures on the gases supplied as inputs by M/s PRAXAIR. Thus there is no duty exemption claimed towards the gases generate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an independent activity/transaction liable to levy of service tax as claimed by the assesse? (iv). whether the larger period of limitation is invokable and justified in the facts and circumstances of the case? (v). whether imposition of equal penalty under Section 11 AC of the CEA, 1944 is justified? 14. Ld. Counsel for the appellants has submitted the following, in a rejoinder to certain points raised by AR. 14.1. The AR referred to Article 1.35 of the Build-Own-Operate Agreement dated 11.8.2005 with SAIL VISP which gives the meaning of Production Facility to contend that the Fixed Facility Charges ware payable for the said Production Facility. The Appellant has clarified that the said Production Facility means the Air Separation Unit, the plant/machinery which manufactures gases by using atmospheric air, and inter-connecting pipelines up to the Battery Limits and other ancillary equipment installed within the premises/land taken on rent from SAIL-VISP within the factory of SAIL - VISP. These are manufacturing facilities used for manufacture of gases. In addition to the manufacturing facilities for manufacture of gases, the Appellants have installed, operated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance of the storage tanks, pipelines up to consumption points, vaporizers, pumps, flow meters, flow regulators, etc., constitute provision of the service of supply of tangible goods. The Appellants are the owners and continue to retain the possession and control over the said facilities since they have undertaken their installation, operation and maintenance. On termination of the BOO Agreement, the Appellants are required to remove the said facilities from the factory of SAIL. The Appellants had admittedly submitted application on 6.8.2008 to the jurisdictional authority for inclusion of the said service in their Service Tax Registration and also made the same request to the Commissioner vide letter dated 19.8.2008 (Page 145). The Commissioner however, rejected the request for payment of Service Tax on the ground that the said plant and machinery fixed to earth are not goods as recorded in Para 41.13 of the impugned order (Page 56 of Memo of Appeal). The same ground has been followed in all the subsequent proceedings. The Appellants have brought out during the hearing that the said pipelines for supply of gases, flow meters, flow regulators, vaporisers, pumps, etc. installed, ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en no excise duty is payable on the Gases supplied the question of treating the Fixed Facility Charges as additional consideration and levy of excise duty does not arise. 14.6. The Appellants have also submitted that the issue in the instant proceedings involves interpretation of law. The Appellants were of the bona fide belief that there was no warrant for payment of excise duty on the Fixed Facility Charges being a consideration for the service rendered, applied for registration for payment of service tax when the Supply of Tangible Goods service became taxable from 16.5.2008, the Hon Tribunal vide Stay Order No 125/2009 dated 17.2.2009 granted unconditional stay against recovery of dues on the ground that the Appellants have strong case on merit and similar stay was granted in subsequent proceedings, the issue of whether the Fixed Facility charges are liable to be included in the value of gases manufactured and supplied was one of the issues referred to the larger Bench of the Hon Supreme Court in the case of CCE Vs. Grasim Industries Ltd, etc. Therefore, there is no basis either to invoke the larger period of limitation in the first proceedings (E/866/08) and impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the gaseous Oxygen, LOX, LIN LAR, vaporization system as described in Annex-V, operation and maintenance of production facilities, and supply of Gases of specified purity at the required pressure on continuous basis is to be ensured as per Annex.-IV. 9.3 STORAGE OF CAPACITIES 9.3.1. SELLER shall install storage tanks, pumps, vaporizers for liquid Oxygen, Nitrogen and Argon and maintain a safety stock as indicated at Annex,-V for meeting the fluctuating demand pattern as well as to provide back-up for uninterrupted supply of Gases during shut down/break down periods of the Production Facilities and also during power interruptions. 9.3.3. If there is any surplus after meeting requirement of SAIL- VISL and maintaining minimum agreed storage level, the SELLER may sell the surplus Gas/Liquid. SELLER shall pay to the BUYER an amount equal to Fixed Charge/tonne x the quantity of Gases and as per formula given below on monthly basis: Fixed Charge/ Tonnage = Total Fixed Charge Tonnage capacity of single unit 9.4.1. Flow meter. Flow computer SELLER shall at their own expense provide and install flow meter/ flow computer for measuring Gases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the outage period of both the meters, Gases Purity and flow shall be measured on average of preceding 24 hours of consumption rate. All the meeting instruments shall be powered up through UPS. The SELLER shall provide facility for measurement of output from this meter for hooking it up with MIS of the Plant. 11.5 The BUYER shall buy from SELLER, the Gases as produced during Commissioning period at the rate indicated in Article-12 provided the Gases meet required quality parameters (Purity Pressure). However, Fixed Facility Charges shall not be payable during this period. 12.0. PRICE FOR GASES SUPPLY 12.1 Oxygen .. @Rs.5.70/Nm Nitrogen MP . @Free of Cost Argon .@Rs.86/Nm for supply from the sellers Own source of Supply and Alternatively ₹ 3 per Tonne per KM if sourcing of LAR is done by Buyer. 12.5. Statutory levies such as excise duty and sales tax for the Gases supplied to the BUYER shall be paid for by the BUYER at actual against documentary evidence. In case of waiver/concession of statutory taxes and duties admissible under Law/Act, for which SELLER will make sincere efforts, the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no supply of Gases Fixed Facility Charges were payable by SAIL-VISP. The Department has proposed to distribute the Fixed Facility Charges on the quantity of Gases supplied during the particular month. They submitted that it lead to abnormal value of the per unit of the Gases and such prices were absurd and nobody will buy and sell the Gases at that rate in the market. The Counsel submitted that the assessable value of Oxygen, as per SCN, by inclusion of the FFC varies widely from month to month from ₹ 11.65/NM3 in March 2007, ₹ 62.46/NM3 in November 2008; ₹ 82/NM3 in April 2013; ₹ 250.66/NM3 in May 2013; ₹ 177.48/NM3 in July 2018; ₹ 1761.14/NM3 for September 2013; to an absurd high value of ₹ 4527.3/NM3 in November 2013; ₹ 183.10/NM3 in October 2014; ₹ 242/NM3 in November 2014; ₹ 274.32/NM3 in May 2015 and ₹ 1889.26/NM3 in February 2017, etc. The data clearly shows that the inclusion of FFC in the sale price of Oxygen leads to absurd high values and levy of excise duty on the FFC even when there was no supply of Oxygen gas. There are a number of periods when there was no supply of gas at all. Still V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es fixed charges/facility charges on monthly basis from the customers to whom the said facilities are provided by the customer. These charges are payable by the Customers at the agreed rates on monthly basis. The facility charges are payable irrespective of fact whether any gases or liquids were purchased by the customers during the month concerned and irrespective of the quantum of purchases. For facility charges, the appellant raises bill on monthly basis to customers concerned irrespective of as to whether the said customer purchased any goods during the month concerned. The appellant enters into contracts with all its major buyers and if any of the aforesaid facilities like erection and maintenance of VIST or Pipeline is required to be provided by the appellant, the agreed Facility Charges payable to the appellant on monthly basis are also mentioned. These are separately mentioned in all the contracts. The buyers are not relative to the appellant in any manner, directly or indirectly. On the instance of Central Excise authority having jurisdiction over the factories of the appellant, the appellant paid various amount towards duty on the facility charges/fixed charges under prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be understood to have some nexus with the production of Gases. No prudent customer would pay such charges for the production of the material in the appellant s factory and to purchase the same at the market price. It is pertinent to note that the Ld. counsel for the appellants has submitted that the Fixed Facilities were partly inside the MSPL premises and substantially in the premises of SAIL-VISP. Further, as per clause 1.35, the Fixed facility charges being paid are for the production facility which is defined to be up to the battery limits. In that case, a portion of Fixed Facility Charges is for the production facility and therefore, the same is to be absorbed in the cost of production being incurred by the appellant. 16.3. The said case law of BOC was in the context of setting up of storage tanks in the buyers premises/ pipelines between the assesses factory and buyers premises and was not for a production facility set up like in the present case. So the cost being incurred/ being paid was beyond the place of production whereas in the present case the reimbursement of Fixed facility charges is toward the production facility charges being recovered over a perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has submitted a copy of the agreement dated 11.08.2005 with SAIL-VISP to the office of the Asst. Commissioner, Central Excise, Assam at the time of obtaining registration in March 2006. The appellants have also been submitting ER-1 Returns from the month of August 2006 onwards. Moreover, the jurisdiction of Superintendent has an office within the vicinity of SAIL-VISP. Therefore, we find that extended period cannot be invoked in respect of that SCN and the demand needs to be restricted to normal period. 16.7. The appellants have contended that their activity of providing facilities to their customers comes under supply of tangible goods as defined under Section 65 (105) (zzzz) of the Finance Act, 1994 from 16.05.2008. We find that Ld. Commissioner has given a finding that as the ownership of the goods are with the appellant and the same have not been sent out of the registered premises of the appellant for use by the Buyer. The equipment having been installed, with due availment of CENVAT Credit towards the same as brought out in the previous paras is part of the production facility of the appellant and has not been given out for use by the buyer. In the scenario of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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