ORDER
C. Satapathy, Member (T)
1. Heard both sides. The issue in this appeal is whether the amount recovered by the appellants from their customers in respect of the delay in return of the cylinders should be added to the assessable value of the Gases. Shri S.K. Bagaria, learned Senior Advocate appearing for the appellant states that the issue has been decided in favour of the appellants in their own case by the Apex Court vide CCE v. Indian Oxygen Ltd. 1988 (38) ELT 730 (SC). He further states that though the decision is with reference to the valuation provisions prior to 2000, the principle that rental charge for delay is return of the cylinders cannot form part of the assessable value still holds under the new valuation provision since the same does not form part of the activity of manufacture. He also states that for the period subsequent to change in the valuation law, in another case of the appellants, the Tribunal had already decided in favour of the appellants vide BOC (I) Ltd. v. CCE, Chennai-I–Order No. A 35/Kol/2004 dated 20.1.2004.
2. Heard Shri N.K. Mishra, learned JDR for the Department. He states that a different decision was taken by the Tribunal in the case of Kota Oxygen (P) Ltd. v. CCE, Jaipur , the appeal against which has been dismissed by the Apex Court vide . He also states that the Department is contemplating to file an appeal against afore-cited order of the Tribunal dated 20.1.2004 but he fairly concedes that as of now no appeal has been filed and no stay has been obtained.
3. After hearing both sides and perusal of case records including cited case laws, we are of the view that the issue in this appeal is squarely covered by the cited decision of the Apex Court in their own case as well as the Tribunal’s afore-cited order dated 21.1.2004. Accordingly, we set aside the impugned order and allow the appeal with consequential benefits to the appellants. Stay application also stands disposed of.