2010 (4) TMI 672 - AT - Central Excise

Valuation related person mutuality of interest -know-how obtained from holding and right to manufacture the product and sold whole of the product to a subsidiary - received technical know-how free of cost - both the parties prevented any competition between them and ensured that the price at which they sell would give them a margin which is sufficient according to their expectation Held that - two parties to the transactions are required to be treated as related persons

Issues Involved:
1. Determination of assessable value.
2. Relationship between BIL and Aventis CropScience (India) Ltd.
3. Additional consideration and its impact on valuation.
4. Applicability of extended period of limitation.
5. Penalty under Section 11AC of the Central Excise Act, 1944.

Detailed Analysis:

1. Determination of Assessable Value:
The core issue was whether the assessable value should be based on the price charged by Aventis CropScience (India) Ltd. to the end user or the price at which BIL sold to Aventis CropScience (India) Ltd. The Tribunal upheld the Commissioner's view that BIL and Aventis CropScience (India) Ltd. are related persons and thus, the price charged by Aventis CropScience (India) Ltd. to the end user should be the assessable value. The Tribunal considered the relationship between the companies, the pricing strategy, and the mutual benefits derived from their transactions.

2. Relationship Between BIL and Aventis CropScience (India) Ltd.:
The Tribunal examined whether BIL and Aventis CropScience (India) Ltd. should be considered related persons. It was argued that both companies being subsidiaries of the same foreign holding company (AgrEvo SA) made them interconnected undertakings. The Tribunal agreed with the Commissioner that the mutual interest and combined operations between BIL and Aventis CropScience (India) Ltd. indicated a related person relationship, justifying the use of the end-user price for valuation.

3. Additional Consideration and Its Impact on Valuation:
The Tribunal addressed the Commissioner's finding that additional consideration in the form of technology, know-how, and non-compete fee was provided to BIL and its directors. The Tribunal noted that while these factors existed, they did not directly affect the price determination. The Tribunal referenced several Supreme Court decisions, including M/s. Atic Industries Ltd., to support the view that these elements did not constitute additional consideration affecting the assessable value.

4. Applicability of Extended Period of Limitation:
The Tribunal found that the extended period of limitation could not be applied as there was no evidence of deliberate intention to evade duty. The Tribunal highlighted that the transactions and arrangements were aimed at mutual benefit rather than evasion of duty. Consequently, the demand was limited to the normal period, rejecting the extended period claim.

5. Penalty Under Section 11AC of the Central Excise Act, 1944:
The Tribunal set aside the penalty imposed under Section 11AC, concluding that there was no suppression of facts or misdeclaration with intent to evade duty. The Tribunal emphasized the need for evidence of such intent, which was not established by the department. Therefore, the penalty could not be sustained.

Conclusion:
The Tribunal concluded that Aventis CropScience (India) Ltd. should be treated as a related person of BIL, and the assessable value should be based on the price charged by Aventis CropScience (India) Ltd. to the end user. The demand was restricted to the normal period, and the penalty was set aside due to the absence of intent to evade duty. The matter was remanded to the Commissioner to recalculate the demand within the limitation period, with an opportunity for the appellants to be heard.

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