TaxTMI 
TaxTMI 
2020 (11) TMI 238
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....r this purpose, appellant entered into an agreement dated 27.12.2008 with Inox Air Products Ltd., (INOX in short) for establishment of Cryogenic Air Separation Unit on Build, Own & Operate (BOO) basis inside their factory premises and supply of the requisite gases. ii) The contract price for gases supplied include:- a. Basic price - price per unit of gas; b. Minimum Take or Pay charges ('MTOP') -price charged for differential quantity of gases, viz., difference between the minimum contracted quantity and actual quantity taken delivery be the appellant; (Clause 15.3 of the contract). For example, the minimum off take for nitrogen is 14,400 nm3 per day. In case, on a particular day, the appellant takes only 10,000 nm3, the difference in ....
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....CX.1 dated 10.11.2014 and to allow the credit to this appellant who is the third respondent in the writ petition. Learned Counsel explained the background of the litigation in his regard as per the table shown below:- S.No Date Events 1 26.03.2012 SCN issued to the appellant alleging wrong availment of credit on FFC and MTOP (page-119 of the appeal book) 2 31.05.2012 & 07.06.2012 Clarification issued to INOX by the Department that excise duty is not payable on MTOP charges while it is payable on FFC (page-157 and 158 of the appeal book) 3 31.01.2013 Order-in-Original issued in case of the appellant denying cenvat credit on FFC and MTOP (page-142 of the appeal book) 4 28.01.2014 Orders sanctioning refund to INOX ....
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....t to the appellants. 2.3 Learned Counsel also explained the method of paying MTOP charges and submitted that such charges and FFC are included in the transaction value and appellant has paid excise duty on such MTOP & FFC in relation to the supply of gases. It is stressed by the learned Counsel that once the excise duty has been discharged by the appellant, the credit cannot be denied. He prayed that the appeal may be allowed. 3. Learned AR Shri Arul C. Durairaj, Supdt., appeared on behalf of Revenue and supported the findings in the impugned order. 4. Heard both sides. 5.1 From the factual narrations given by the appellant we notice that the Hon'ble jurisdictional High court while deciding the writ petition filed by INOX as reported in....
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....ued to the petitioner. 8. The Commissioner of Central Excise vide two separate Order-in-Original Nos. 2 & 3/2015, both dated 26-5-2015 has thereafter passed orders and has been concluded that the Transaction value of gases supplied by the petitioner were not influenced by the Fixed Facility Charges and the Minimum Take or Pay Charges (MTOP) but as per the cost of power and as per the higher demand of gases that is more than MTOP quantity. Accordingly, the Commissioner has ordered recovery of sanctioned amount. 9. It has been concluded that the petitioner was indeed liable to pay tax on the Fixed Facility Charges (FFC) and Minimum Take or Pay Charges (MTOP). Accordingly the amounts that were earlier refunded to the petitioner pursuant to....
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....cording to the official respondents namely 1, 2 and 4 the present writ petition seeking fora mandamus to allow the 3rd respondent to avail Cenvat credit travels beyond Rule 3 of the Cenvat Credit Rules, 2004and therefore the writ petition was liable to be dismissed. 13. It is stated that even otherwise the Central Board of Excise and Customs has also clarified the Cenvat credit was to be allowed only in terms of provisions of the Cenvat Credit Rules, 2004 and that in any event the 3rd respondent has filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal which will decide the case. 14. I have considered the arguments advanced by the Learned Counsel for the petitioner and the respondents. The 1st, 2nd, and the 4th r....