Harish Chander, Member (J)

1. M/s. Amis Oxygen Pvt. Ltd., Baroda have filed an appeal being aggrieved from the order-in-original No. 17/MP/85, dated 29-6-1985 passed by the Collector of Central Excise, Baroda. The appellants are engaged in the manufacture of Industrial Gases namely Oxygen, Acetylene, Nitrogen gas etc. falling under tariff items 14H and 68 of the first schedule to the Central Excises and Salt Act, 1944, under the Central Excise licence in form L-4 held by them for such manufacture. The Unit was selling their product, from the factory gate and through their depots situated at Ahmedabad, Rajkot and Udhna as well and they had filed price list in Part-I except for M/s. I.P.C.L., Baroda in which case price list had been filed in Part-II as they had entered into contract with them. Scrutiny of the records/documents revealed that the Unit had issued invoices covering the sales of their products 'as aforementioned and had also issued separate invoices (debit notes) representing the "handling charges" and "cylinder detention charges". The appellants had filed price lists under Rule 173C of the Central Excise Rules, 1944 for their products and the invoices issued by them reflected prices mentioned in the price lists and duty was paid on the basis of these approved prices. The amount representing "handling charges" and "cylinder detention charges" recovered by issuing separate invoice (debit notes) as mentioned above were not included by them in the prices declared by them to the Central Excise authorities nor had they declared the recovery of said charges before the authorities while filing the price lists. The scrutiny of "General ledger" maintained by the Unit during the year 1979 to 1984 further revealed that the extra charges by way of issuing separate invoices (debit notes) were recovered by them mainly under the following heads :-

(1) Handling charges

(2) Loading and unloading charges and

(3) Cylinder detention charges.

The appellants had received the following amounts during the period April 1979 to February 1984.

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It was further found that the freight charges actually incurred by the appellants were found to have been debited in the head "Freight and Transport" and that the Unit did not incur any such expenses on extra charges recovered as above. The authorities felt that all these charges were required to be included in the prices as per the provisions of Section 4 of the Central Excises and Salt Act, 1944 read with Rule' 5 of the Central Excise (Valuation) Rules, 1975. The statements of S/Shri Siddarthbhai A. Patel, Director of the Unit and Prakashbhai H. Shah, Chief Accountant of the Unit were recorded. In his statement Shri Siddarthbhai A. Patel had stated that the invoices were prepared on the basis of approved price lists and they were issuing debit notes on the same day when the invoices were issued for the extra services rendered to the buyers such as loading/ unloading charges, handling charges, transportation charges, octroi and such cost of transportation. He stated that those debit notes were not issued in all cases but are issued when such services of extra cost were availed of by the buyers. The debit notes were issued at a consolidated rate of charges per cylinder which were not bifurcated in the debit notes and the same were not declared in the price lists filed before the Central Excise authorities. The goods were transported from their factory in their vehicles as well as through the vehicles of transport company. The prices declared before the Central Excise authorities were not inclusive of transportation charges and the prices were ex-factory. A Show Cause Notice was issued for contravention of the provisions of Rule 173C of the Central Excise Rules, 1944 read with Rule 5 of the Central Excise (Valuation) Rules, 1975, Rule 173F read with Rule 9(1) of the Central Excise Rules, 1944 inasmuch as they failed to file correct price list, as they did not take into account extra charges as referred