2013 (11) TMI 1206

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.... applicant has submitted that the applicant is a public sector undertaking, had entered to an agreement with M/s. Goyal MG Gases (P) Ltd. dated 17.03.2004, for purchase of Oxygen gas, on built own operate basis, from the premises of the applicant. Pursuant to the said agreement, the applicant received Oxygen gas from M/s. Goyal MG Gases (P) Ltd. during the period 2004-05 to 2008-09. It is the case of the Revenue that the applicant besides availing Cenvat Credit on the duty paid on Oxygen gas by M/s. Goyal MG Gases (P) Ltd. had also availed Cenvat Credit on the amount of duty paid on 'fixed facility charges' by M/s. Goyal MG Gases (P) Ltd.. The departments contention is that the duty paid on fixed facility charges cannot be available as Cen....

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.... invoices are raised for fixed facility charges and for sale and supply of Oxygen gas. Ld. A.R. further submitted that the fixed facility charges are required to be paid by the applicant even if there is no manufacture, sale and supply of Oxygen gases during a particular period as has been agreed upon in the relevant agreement. Ld. A.R. further submitted that the value of fixed facility charges cannot be included in the value of Oxygen in view of the judgement of the Hon'ble Supreme Court in the case of Collector of Central Excise vs. Indian Oxygen Ltd. 1988 (36) E.L.T. 730(SC). It is submitted that once the value of fixed facility charges cannot be included in the value of Oxygen gases, then Cenvat Credit cannot be admissible treating the ....

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....aid on fixed facility charges, as a part of the value of the Oxygen gas. We find that more or less on similar grounds this Tribunal in Aurobindo Pharma's case (supra) after recording various Tribunal's case including the ratio of Hon'ble Supreme Court's case in the case of Indian Oxygen Ltd. case has arrived at a finding recorded at para 7 of the said order which reads as follows:-     7. We find that whether the value of the rental charges is includible in the assessable value or not is not in question here. It is the issue of whether duty liability has been discharged by the supplier. If he has discharged the duty liability the availment of credit of such duty by the respondent would be correct. In the case before us it ....