1976 (8) TMI 150 - HC - Central Excise

Summary

Issues Involved:
1. Determination of the "wholesale cash price" for the levy of excise duty.
2. Whether the petitioner and Nestle's were dealing at arm's length.
3. Inclusion of the value of the brand name in the price charged for excise duty purposes.

Issue-wise Detailed Analysis:

1. Determination of the "wholesale cash price" for the levy of excise duty:
The primary issue was the determination of the "wholesale cash price" under Section 4(a) of the Central Excises and Salt Act for the purpose of levying excise duty. The petitioner argued that the price at which they sold products to Nestle's should be considered the wholesale cash price. The Supreme Court's decision in A.K. Roy v. Voltas Ltd. clarified that a wholesale market does not necessarily require a physical market where articles are sold and bought; potentiality of wholesale sales suffices. The price at which a manufacturer sells to wholesale dealers remains the "wholesale cash price" if the parties deal at arm's length, without extra commercial considerations. The Supreme Court's reaffirmation in Atic Industries Ltd. v. H.H. Dave further supported this principle, emphasizing that excise duty should be based on manufacturing cost and profit, excluding post-manufacturing costs.

2. Whether the petitioner and Nestle's were dealing at arm's length:
The Government of India held that the petitioner and Nestle's were not dealing at arm's length because they were subsidiaries of the same foreign company. However, the agreements between the petitioner and Nestle's contained all the usual commercial terms, such as mutually binding conditions, order placements, supply manner, price stipulations, and arbitration provisions. The Supreme Court in A.K. Roy v. Voltas Ltd. and Atic Industries Ltd. v. H.H. Dave established that exclusive buyers do not become favored buyers solely because they are the only or primary buyers. The crucial test is whether the price charged is a specially low price and whether extra commercial considerations influence the transactions. In this case, the prices were fixed on purely commercial considerations, and there was significant price escalation over the years, indicating arm's length dealings.

3. Inclusion of the value of the brand name in the price charged for excise duty purposes:
The respondents argued that the price charged to Nestle's did not include the value of the brand name, which should be included. The court rejected this argument, stating that the trade mark is the property of Nestle's, not the petitioner. The petitioner could not sell what was not theirs. The value of the brand name is a post-manufacturing cost or seller's profit, which should not be included in the "wholesale cash price" for excise duty purposes. Including it would be contrary to the basic principles of excise duty as it does not form part of manufacturing cost or profit.

Conclusion:
The orders of the Central Excise authorities and the Government of India were quashed. The Central Excise authorities were directed to reassess the values of the excisable articles based on the prices charged by the petitioner to Nestle's. The excise duty paid was ordered to be refunded, with no order as to costs.