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Judgment
Raju, Member (T)
This appeal has been filed by M/s. Aims Industries Ltd., against demand of Service Tax.
Learned Counsel for the appellants pointed out that they have engaged in supply of gas in cylinders. The appellants while supplying the gas in cylinders allow the customer to retain the cylinder for a specific period of time. However, in case the customers delays the return of empty cylinders certain charges are levied on the customers. The present demand is in respect of the charges recovered from the customers on account of delay in return of cylinders under the category of supply of tangible goods service. Learned Counsel pointed out that the matter is already been decided in appellants own case in the following decisions:
• Aims Pharma Pvt Ltd- 2019(5) TMI 240-CESTAT AHM
• Aims Pharma Pvt Ltd-2019 (12) TMI 393-CESTAT Ahm
• Aims Pharma Industries Ltd-2019 (4) TMI 2091-CESTAT Ahm
• Aims Pharma Industries Ltd-2023 (1) TMI 5-CESTAT Ahm
• Tiger Logistics (India) Ltd- 2022 (63) GSTL 337 (Tri.-Del.)
Learned AR relied in the impugned order.
We find that identical issue has been decided in appellant’s own case in vide order reported in 2023 (1) TMI 5 CESTAT-Ahmd. In the said order following has been observed:
“4. On careful consideration of the submission made by both the sides and perusal of the records. We find that the issue that whether the retention charges of cylinder wherein the gas is supplied by the appellant after the stipulated time should be included in the assessable value of the gas or otherwise. We find that the same issue has been decided in the appellant’s own case for their different factory vide Tribunal’s order dated 03.04.2019 (Supra). In the said decision various Judgments including the Supreme Court judgment in the case of Grasim Industries Ltd was considered. The order dated 03.04.2019 is reproduced below:-
“The issue involved is that whether the retention/detention charges recovered by the appellant beyond the stipulated time period is required to be included in the transaction value of the gas sold in the packed cylinders.
Shri Saurabh Dixit, Ld. Counsel appearing on behalf of the appellant submits that the very same issue has been decided in the catena of judgments which as follows:
BOC India Ltd. 2004 (175) ELT 236(Tri.-Kol.)
Govind Poy Oxygen Ltd. 2008 (231) ELT 299 (Tri. Mum)
Inox Air Products Ltd. 2016(336) ELT 316 (Tri.-Mum.)
Indian Air Gases Ltd. 2015 (318) ELT 434 (T)
Goyal M.G. Gases P. Ltd. 2014(309) E.L.T. 327 (Tri.-Del.)
Grasim Industries Ltd. 2009 (241) ELT 321(SC)
Grasim Industries Ltd. 2016 (334) ELT 385 (SC)
Grasim Industries Ltd. 2018(360) ELT 769(SC)
2.1 He further submits that the same issue has been finally settled by the 5 judges bench of larger bench of Supreme Court in the case of Grasim Industries Ltd. 2018 (360) ELT 769 (SC).
Shri Amit Kumar Mishra, Ld. Jt. Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
Heard both sides and perused the records. We find that the issue no longer res integra in the light of various judgments cited by the Ld. Counsel. In our view, retention/detention charges is not a part of the sale price. It is only charged when the customers retain/detain the cylinders beyond the period stipulated by the appellant. Accordingly, the retention/detention charges are not includable in the transaction value of the excisable goods namely gas sold, duly packed, in the gas cylinders. Following the ratio of the judgments, impugned order is set aside. The appeals are allowed.”
In view of the above decision of this Tribunal which is based on the Hon’ble Supreme Court judgment in case of Grasim Industries Ltd the issue is no longer Res-Integra, therefore, the impugned order is not sustainable.
Accordingly, the impugned order is set aside, appeal is allowed.”
Relying on the aforesaid decision, the impugned order is set aside. Appeal is allowed.