ORDER
T. Anjaneyulu, Member (J)
1. Commissioner or Central Excise, Pune-II aggrieved by an order passed by the Commissioner of Central Excise and Customs, Pune has filed all these appeals. A common issue arises in these appeals are that whether handling, maintenance and testing charges incurred on gas cylinders includible in assessable value of the final product or otherwise. The Appellant i.e. M/s Konkan Gases (P) Ltd., Kudal Dist. Sindhudurg, engaged in the manufacture of Industrial Oxygen, Medicinal Grade Oxygen and dissolved Acetyl falling under Chapter Heading 2804.19, 2804.11 and 2901.10 respectively of the Central Excise Tariff Act, 1985. While clearing the above goods packed in cylinders the assessee have claimed a deduction of Rs. 1.80 per cubic meter of gas from invoice price towards handling charges and maintenance and testing charges of cylinders.
2. Show cause notice was issued for period from April 1996 to September 1997 for contravening provisions of Section 4.4(d)(1) of Central Excise Act, 1944 read with Rule 173C and F of Central Excise Rules, 1944 resulting in short payment of Central excise duty proposing to recover alongwith interest and penalty. The assessee relied upon various case laws in the case of C.C.E. v. Indian Oxygen Ltd. , C.C.E. v. Century Spinning and Manufacture Co. Ltd. in its defense and pleaded to drop the show cause notices.
3. The jurisdictional Assistant Commissioner vide Order-in-Original held that cost incurred towards packing of excise goods in durable container is includable in assessable value as held in case of National Rayon Corporation v. Commissioner vide Order-in-Appeal No. P II/39/97 dt. 18.12.1997 and applying the ratio, he had confirmed the demand against which M/s Konkan Gases (P) Ltd. preferred appeal before Commissioner (Appeals), Pune.
4. Commissioner (Appeals), Pune while deciding the issue observed that M/s Konkan Gases (P) Ltd. went in appeal before CEGAT (WZB), Mumbai against the order made in order-in-appeal No. PII/37/97 dt. 18.12.1997 and CEGAT vide its Order No. CII/1890-1891/WZB/1999 dtd. 04.08.1999 hold that cost of maintenance etc. of cylinders is not includable in assessable value. Thus Commissioner (Appeals), Pune finally allowed appeal filed by the assessee while setting aside the impugned order-in-original passed by the jurisdictional Assistant Commissioner, Ratnagiri Division. Thus the department is in appeal assailing the order of the Commissioner (Appeals), Pune as not legal, proper and correct.
5. It is contended on behalf of the department that the issue has already been settled recently by another Tribunal decision in the case of Kota Oxygen Pvt. Ltd. v. C.C.Ex. Jaipur vide its final Order No. 624/2000-A dated 02.08.2000 and which is also upheld by the Hon’ble Supreme Court and as such the reliance placed by the Commissioner (Appeals) on particular case law as cited by the assessee, without considering the above case law the impugned order is erroneous and is liable to be set aside.
6. Having considered the submissions made by both sides and following the decisions of the Tribunal in the appellants own case as referred by the learned C.C.E. (A) and the statement made by the learned advocate for the respondent, we are of the view that these appeals required further adjudication. As such, they are remanded back for applying the aforesaid ratio and decide the case afresh. Accordingly, all these appeals are allowed in remand in above terms.
(Pronounced in Court)