Facts

The Respondent company manufactures dissolved and compressed industrial gases, liquid chlorine and  other allied products. These articles were supplied    to the customers in containers. In some cases the  containers was  provided by the Respondent to the customers on rent whereas in others the customers bring their own containers. The Respondent charges the customers certain amounts under different heads and treat the said amounts as their income from ancillary     or allied ventures. Present appeal was filed questioning the charges realized by    the Respondent taken into account for determination of levy of tax. There was a conflicting view between the two decisions of this Court in UOI. v. Bombay Tyre International Ltd. and Ors. (1984) 1 SCC 467 and CCE Pondicherry v. Acer India Ltd. (2004) 8 SCC 173, and the matter was referred to the larger bench by    an order dated 30.07.2009.

Issue

Whether S. 3 and 4 of the Act, despite being interlinked operate in different fields, in the light of amendments to the S. 3, 4 and 4(3)(d) of the Act and charges such as packing charges, container charges, facility charges, delivery and collection charges, repair and testing charges etc would form part of transaction value or not.

View

The measure of the levy must not be confused with the nature thereof though there must be some nexus between the two. But the measure cannot be controlled  by the rigors of the nature. The measure is the value and value is related to  price. The price charged at the stage of clearance, in addition to manufacturing  cost and manufacturing profit, can include certain value additions and inclusions which enrich the value of the product to make it suitable for sale or to facilitate such sale. At this stage, impost has nothing to do with the sale. The impost is on manufacture. But it is the value up to the stage of the first sale that is taken as      the measure. Doing so does not introduce any inconsistency between the nature and character of the levy and the measure adopted. The amendment of Section       3 to the Act incorporates the essentials of a changed concept of charging of tax      on additions to the value of goods and services at each stage of production and   also engrafts in the statute  what  was judicially  held to  be  permissible additions to the manufacturing costand manufacturing profit in Bombay Tyre International

Ltd. (supra). This fundamental change really finds reflection in the definition of ‘transaction value’ as defined by Section 4(3)(d) of the Act which was brought  into force by the Amendment Act, 2000. It statutorily engrafts the additions to     the ‘normal price’ under the old Section 4 as held to be permissible in Bombay   Tyre International Ltd. supra. There is no discernible difference in the statutory concept of ‘transaction value’ and the judicially evolved meaning of ‘normal price’.

Held

The measure of the levy contemplated in Section 4 of the Act will not be controlled by the nature of the levy. So long a reasonablenexus is discernible between the measure and the nature of the levy both Section 3 and 4 would operate in their respective fields. The charges so realized by the respondent company shall form part of the transaction value for the levy of tax. (CA  No. 3159    of 2004& Ors dt. 11-5-2018)

Editorial: Section 9 of CGST Act is the charging section. Section 7 covers scope    of supply. Section 15 provides for value. Section 15(2)(c) includes incidental expenses charged to the recipient by the supplier for anything done by the supplier in respect of supply of goods or services or both at the time of or before the delivery of the goods or supply of services. Hence, expenses charged by the supplier in relation to such supply would form part of value. Therefore, the ratio   of the above ruling, to this extent, may be relevantfor construing section 15(2)(c).

“The golden rule of conduct is mutual toleration, seeing that we will never all think alike and we shall always see Truth in fragment and from different points of vision.”

– Mahatma Gandhi