TMI Blog2020 (8) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... cation issued by the Central Board of Excise and Customs particularly in the light of the fact that the clarification has been given pursuant to directions of the Bombay High Court - Even otherwise, if the Minimum Take or Pay Charges (MTOP charges) and the proportionate Fixed Facility Charges (FFC) were built into the transaction value of the gases supplied by the petitioner to the 3rd respondent on which Excise duty was paid by the petitioner, the 1st, 2nd and the 4th respondent are bound to allow the 3rd respondent to avail CENVAT Credit under the provisions of the CENVAT Credit Rules, 2004 to the 3rd respondent or to any other person with whom the petitioner has similar transactions. This writ petition was filed prior to the substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny favourable response to the representation sent to the Central Board of Excise and Customs (CBEC), the petitioner filed a writ petition before the Bombay High Court in W.P. (L).No. 123 of 2014. By an order dated 21.2.2014, the Bombay High Court directed the Central Board of Excise and Customs to decide the issue preferably within a period of 4 weeks from the date of receipt of the said order. Under these circumstances, the Central Board of Excise and Customs communicated its clarification dated 10.11.2014 bearing reference F.No.6/03/2013/CX.1 to the petitioner wherein it was clarified as under: a.In the months where there is a supply of gas, all elements of consideration such as, price of gas at designated rate per unit of gas and FFC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. It is submitted that the arbitrator has recently passed an award on 07.11.2019 against the petitioner which the petitioner proposes to challeng under Section 34 of the Arbitration and Conciliation Act, 1996. 6.Petitioner further submits that excise duty paid by the petitioner on the Fixed Facility Charges (FFC) and Minimum Take or Pay Charges (MTOP) were also refunded pursuant to Order an Appeal No.66/2013 and 37/2013 dated 24.10.2013. However, protective show cause notice were issued to the petitioner. However, these orders were reviewed and the cases were taken up by way of appeal before the Customs and Excise Service Tax Appeallate Tribunal. 7.The Appeallate Tribunal by its order dated 22.12.2014 disposed the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the said Tribunal. 11.In the present writ petitions, the petitioner has prayed for the direction to the 1st respondent to ensure that the field formation to comply with the clarification of the Central Board of Excise and Customs dated 10.11.2014 bearing reference F.No.6/03/2013/CX.1 and ensure that for the purpose of valuation, Excise duties was required to be paid by the petitioner on the Minimum Take or Pay Charges (MTOP charges) and the proportionate Fixed Facility Charges (FFC) proportionate to the MTOP quantity as forming part of the transaction value for levy of Excise duty of Gases manufactured and supplied by the petitioner to enable the 3rd respondent to avail CENVAT credit. 12.The respondent on the other hand have stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the gases supplied by the petitioner to the 3rd respondent on which Excise duty was paid by the petitioner, the 1st, 2nd and the 4th respondent are bound to allow the 3rd respondent to avail CENVAT Credit under the provisions of the CENVAT Credit Rules, 2004 to the 3rd respondent or to any other person with whom the petitioner has similar transactions. 16.This writ petition was filed prior to the substitution of the Central Excise Act, 1944 with the Central Goods and Service Tax Act, 2017. Therefore, the writ petiton has become infructuous. At the same time, to the extent, the issue isi pending with the 4th respondent. The 4th respondent is directed to comply with the clarification of the Central Board of Excise and Customs 10.11.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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