TaxTMI 
TaxTMI 
2023 (6) TMI 849
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....in special vehicle transport tanks and delivered to the customers as per the requirement. The appellant had entered into agreement with various customers for supply of goods (gases) as well as for providing fixed facilities in the nature of Vacuum Insulated Storage Tanks at the customer's site. On verification of agreements entered between the appellant and their customers, it was found that the appellant installed the said tanks at the customer's premises for continuous supply of nitrogen liquid. The customers are required to provide space for installing the said tanks and free access is given to the appellant for supply of liquid nitrogen gas. Appellant was receiving fixed facility charges (FFC) from their customers for providing such sto....
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....service. The appellant having discharged excise duty and paid VAT on the said FFC collected from the customers, the appellant cannot be further burdened with levy of service tax of the same amount. Ld. Counsel adverted to the Board Circular F.No.6/03/2013-CX.1 dated 10.11.2014 to submit that Board has issued clarifications in relation to levy of Central Excise Duty on the Fixed Facility Charges (FFC) and Minimum-Take-Or-Pay (MTOP) collected by the appellant. The said clarification has been issued specifically in the case of the appellant namely M/s.Inox Air Products Ltd. It is clarified in the said circular that appellant has to discharge Central Excise duty on the FFC and MTOP charges collected. 3. The very same issue as to whether appell....
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....and vide W.P (L) No.123 of 2014 order dated 21.02.2014, as reported in 2014 (305) ELT 106 (Bom.), the Hon'ble High Court directed the Board to issue clarification. Pursuant to this, the Board vide circular dt. 10.11.2014 has clarified that FFC charges has to be included in the assessable value for discharging cenvat credit. It was also clarified that appellant would be eligible for availing credit of the duty paid. The said Board circular reads as under : "M/s.Inox Air Products Limited (hereinafter referred as INOX) have made several representations in relation to inclusion of Fixed Facility Charges (FFC) and Minimum Take Or Pay (MTOP) charges in the assessable value of the gases being manufactured and supplied to their customers for the ....
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....th provisions of CENVAT Credit Rules, 2004." 8. Subsequently, the appellant at Chennai was issued SCN proposing to deny the credit. The appellant filed writ petition before the Hon'ble jurisdictional High Court, and vide judgment reported in 2020 (38) GSTL 158 (Mad.) Hon'ble High Court held that the department is bound by the clarification issued. It can be seen that ownership of the tanks remains with the appellant and the possession and effective control of the tanks is with the customers during full term of the agreement. The definition of "supply of tangible goods" as per section 65 (zzzzj) defines as "any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, ....