Cce, Puducherry vs M/S. National Oxygen Ltd

(Arising out of Order-in-Appeal No. 30 & 31/2004 (P) dated 9.3.2004 passed by the Commissioner of Central Excise (Appeals), Chennai)

CCE, Puducherry M/s. National Oxygen Ltd. Appellants

Vs.

M/s. National Oxygen Ltd. CCE, Puducherry Respondents

Appearance

None for the Assessee Shri B. Balamurugan, AC (AR) for the Revenue

CORAM

Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member

Date of Hearing / Decision: 11.08.2015

Final Order No. 40983-40986 / 2015

Per R. Periasami

None appeared for the appellant-assessee. As the appeals pertain to the year 2004, we proceed to dispose of the appeals.

2. The issue relates to inclusion of facility charges and cylinder holding charges to the assessable value. The adjudicating authority demanded differential duty. The Commissioner (Appeals) upheld the facility charges but reduced the penalty. Hence the appellant-assessee are in appeal against the demand of facility charges. Revenue has come in appeal against order of the Commissioner (Appeals) wherein the Commissioner (Appeals) has allowed the assessees appeal holding that cylinder holding charges are not includible to the assessable value.

3. The learned AR for Revenue submits that in the case of CCE Vs. Grasim Industries Ltd.  2009 (241) ELT 321 (SC), the Honble Supreme Court has referred both the issues to the Larger Bench of the Honble Supreme Court and is still pending.

4. After hearing the learned AR and on perusal of the records, we find that the period of dispute involved in these appeals are from September 2000 to August 2001 and from September 2001 to July 2002. This Tribunal vide Final Order No.155 to 157/2007 dated 20.2.2007 and Final Order No. 40600 & 40601/2015 dated 28.5.2015, in an identical case, remanded the matter to the lower appellate authority. We find that in the case of CCE Vs. Grasim Industries Ltd. (supra, the Honble Supreme Court has referred the issue to Larger Bench of the Honble Supreme Court. Paragraphs 14 to 16 are reproduced as under-

14. With utmost respect to the learned Judges constituting the Bench in Acer (supra), we feel that the interpretation of Sections 3 and 4 of the Act after the substitution of Section 4 is not in conformity with the scheme of the Act prima facie, for the reasons that (i) Section 3 is a charging Section providing for levy of excise duty on excisable goods, whereas Section 4 provides for the measure for valuation of excisable goods with reference to which the charge of excise duty is to be levied, (ii) both operate in their independent fields even though there may be a link between the two and (iii) in the case of Bombay Tyre (supra), (a three-Judge Bench), the contention of the assessees that the measure was to be found by reading Section 3 with Section 4, thus drawing the ingredients of Section 3 into, the exercise was specifically rejected. Besides, we also have reservation with the observation in Acers case (supra) that the definition of transaction value must be read in the text and context of Section 3 of the Act. In our prima facie view, this would amount to diluting the width of transaction value as defined in the substituted provision.

15. Since the issues arising in these appeals are of seminal importance and are likely to have serious ramifications on the question of determination of assessable value of the excisable goods for the purpose of levy of duty of excise, we are of the view that the following issues require consideration by a larger Bench:

1. Whether Section 4 of the Central Excise Act, 1944 (as substituted with effect from 1-7-2000) and the definition of Transaction Value in Clause (d) of sub-Section (3) of Section 4 are subject to Section 3 of the Act?

2. Whether Sections 3 and 4 of the Central Excise Act, despite being interlinked, operate in different fields and what is their real scope and ambit?

3. Whether the concept of Transaction Value makes any material departure from the deemed normal price concept of the erstwhile Section 4(1)(a) of the Act?

16.?Accordingly, we direct the Registry to place this order before Honble the Chief Justice of India for appropriate directions.

5. In view of the above Apex Court decision to refer the issue to Larger Bench of Supreme Court and in the present appeals the issues are identical in nature i.e. rental charges collected as facility charges and cylinder holding charges while supplying the gas, it is appropriate that the appeals to be decided only after the final outcome of the Apex Courts Larger Bench decision. Accordingly, we remand the cases to the lower appellate authority with the direction to decide the appeals on all the issues based on the outcome of the decision of the Larger Bench of the Honble Supreme Court. Needless to say that the appellant-assessee shall be given a reasonable opportunity of hearing before passing order. Accordingly, all the appeals filed by the assessee and Revenue are allowed by way of remand to the Commissioner (Appeals).

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) Judicial Member Tehnical Member

Rex

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