ORDER
C.N.B. Nair, Member (T)
1. Revenue is mainly seeking to include the profit made in regard to cylinder repair and maintenance and loading and unloading charges. The contention of the respondent is that maintenance and unloading of cylinders are in no way connected with the manufacture of the gas and therefore the entire amount charged towards those activities are required to be excluded for excise purposes. It is being pointed out that law on this subject is settled by the order of the Apex Court in the case of Baroda Electric Meter reported in 1997 (94) E.L.T. 13 (S.C.) and the Commissioner has passed the impugned order following that order. As against this, the learned DR has submitted that the entire collection by the appellant would not get excluded even in terms of the judgment inasmuch as part of the collection is towards loading of the filled cylinder in the manufacturing factory. He has also submitted that it is well settled that costs up to delivery of the manufactured goods are required to be included while determining the assessable value.
2. We have perused the records and considered the submissions made by both sides. The Revenue is right in contending that loading charges were required to form part of assessable value. The demand is therefore sustainable to this extent. However, since the amount attributable to this is not indicated separately, it is ordered that the adjudicating authority shall determine the amount of duty on this count after hearing the appellant. The appellant shall pay the amount so determined. It is also made clear that the duty amount shall be worked out on cum duty basis. The appeal in that regard is, therefore, rejected.
3. The Revenue appeal also seeks restoration of the penalty imposed on the appellant Director Mr. P.K. Jain. The demand arises on account of mixed questions of law and fact. Bulk of the demand is also not sustainable. In these circumstances, penalty on any Director is not warranted.
4. Both the appeals are disposed of on the above lines.