CCE Vs. BOC INDIA

JUDGEMENT

(1.) THESE appeals filed by the Department are against the decision of learned Commissioner (Appeals) on the question whether 'cylinder holding charges' (rental charges) were includible in the assessable value of the industrial gases supplied by the respondents to their buyers during the period of dispute. Learned Commissioner (Appeals) held in favour of the assessee by following the Tribunal' Final Order No. A/35/KOL/2004 dated 20.1.2004 in Appeal No. E/8/2003 since reported in 2004 (175) ELT 236 (Tri. Kolkata) [BOC India Ltd. v. CCE, Chennai - I]. In the said case of the same assessee, considered by the Eastern Bench of the Tribunal, the very same issue had arisen. In the operative part of the Tribunal's order, extracted in the impugned order by learned Commissioner (Appeals), it was held that, even after the amendment brought to Section 4 of the Central Excise Act with effect from 1.7.2000, the cylinder holding charges (rental charges) collected by the assessee from their buyers in respect of the returnable cylinders would not form part of the transaction value. Following the Tribunal's decision, learned Commissioner (Appeals) vacated the demand of duty confirmed against the assessee by the lower authority.

(2.) IN the present appeal, it is submitted that the above final order of the Tribunal's Eastern Bench has been appealed against and the appeal has been admitted by the apex Court as reported in Commissioner v. BOC India Ltd. 2005 (186) ELT A119 (SC). Learned SDR submits that, though there is no stay of operation of the Tribunal's order, the finality and correctness of the said order have been adversely affected by the admission of civil appeal by the apex Court and therefore it will not be correct to follow the said order of the Tribunal till final disposal of the civil appeal by the apex Court. In this connection, reference is made to Union of India v. West Coast Paper Mills Ltd. , wherein the Hon'ble Supreme Court held that, once a Special Leave Petition was granted and appeal admitted, correctness or otherwise of the Tribunal's judgment appealed against were in jeopardy.

(3.) ACCORDING to learned Counsel, in the absence of stay of operation of the Tribunal's order, that order can be followed for the purpose of disposing of this appeal.