Page 52 - ELT_15th June 2020_VOL 372_Part 6th

A206 EXCISE LAW TIMES [ Vol. 372

(1) Valuation (Central Excise) — Fixed Facility Charges,
whether includible in assessable value of gases sup-
plied to customers

(2) Installation, operation and maintenance services of
goods within manufacturing unit, whether taxable as
supply of tangible goods under Section 65(105)(zzzz)
of Finance Act, 1994?

(3) Gases produced and consumed in a factory — Exemp-
tion under Notification No. 67/95, whether applica-
ble?
The Supreme Court Bench comprising Hon’ble Mr. Justice S.A. Bobde
and Hon’ble Mr. Justice B.R. Gavai on 3-7-2019 after condoning the delay issued
noticed in the Civil Appeal Diary No. 16147 of 2019 filed by MSPL Gases Ltd.
against the CESTAT Final Order No. 20022-20030/2018, dated 10-1-2019 (MSPL
Gases Ltd. v. Commissioner). While issuing the notice, the Supreme Court passed
the following order :
“Delay condoned.
Issue notice.
In the meantime, there shall be stay of further proceedings in view of
the impugned judgment and order passed by the High Court directing re-
mand for fresh consideration and proper apportionment of the Fixed Facili-
ty Charges to the cost of the gases.”
The Appellate Tribunal while remanding the matter to the Original Ad-
judicating Authorities had held that the agreement clearly indicates that the
monthly payment for supply of gases would be made in form of reimbursement
of Fixed Facility Charge thus, the consideration paid including FFC is towards
the supply of gases therefore, it would be a part of the value of gases. Also, if any
of the Fixed Facility Charges have nexus with the production facility, charges
needs to be apportioned towards the cost of gases in terms of methods of costing
given by Apex Court in 2018 (360) E.L.T. 769 (S.C.).
The Tribunal further held that installation, operation and maintenance
service of storage tanks, pipelines within the manufacturing unit did not include
supply of tangible goods under Section 65(105)(zzzz) of Finance Act, 1994 as the
ownership of goods are with the appellant and has not been sent out of the regis-
tered premises of appellant for use by the buyer. Also, the equipment had in-
stalled, with due availment of Cenvat Credit.
It was also held that the exemption under Notification No. 67/95-C.E.
would be inapplicable as the appellant being an independent manufacturer pro-
duced gases from air, has not produced any interim inputs which goes into a
taxable final product cleared by themselves to avail exemption.
REPRESENTED BY : Mr. Shyam Divan, Senior Advocate, Mr. Pramond
B. Agarwala, AOR and Mr. Aayush Agarwala,
Advocate, for the Appellant.

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