Assessable value of compressed oxygen gas excludes customer-owned cylinder cost when no contrary higher court ruling exists.

Compressed oxygen gas cleared in customer-owned cylinders was held to exclude the cost of those cylinders from assessable value for central excise duty. The Tribunal applied the Bombay High Court's ruling that section 4(4)(d) and Notification No. 313/77-C.E. did not justify inclusion of the cylinder cost where no price was charged for the containers, and no contrary decision of another High Court or the Supreme Court was shown. On that basis, the differential duty demand was not sustainable and the assessee obtained consequential relief.

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Issues: Whether the cost of gas cylinders belonging to customers was includible in the assessable value of compressed oxygen gas for central excise duty purposes.

Analysis: The appellants cleared compressed oxygen gas in cylinders owned by customers and contended that no price was charged for the cylinders. The departmental stand rested on the exclusion under section 4(4)(d) and on Notification No. 313/77-C.E. dated 8-11-1977, but the same arguments had already been rejected by the Bombay High Court. In the absence of any contrary judgment of any other High Court or of the Supreme Court, the Tribunal followed that High Court ruling and applied its ratio to the facts before it.

Conclusion: The cost of customer-owned cylinders was not includible in the assessable value, and the demand for differential duty could not be sustained.

Final Conclusion: The appeal succeeded with consequential relief to the appellants.

Ratio Decidendi: Where compressed gas is cleared in cylinders belonging to customers, the cost of such cylinders is not includible in the assessable value for central excise purposes when the governing High Court view has been accepted in the absence of any contrary superior authority.

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