2010 (8) TMI 316 - AT - Central Excise

Valuation dummy units It is unconceivable that a manufacturer of aerated waters and concentrate syrups whose marketing requires considerable expense and financial investment would hand over the same to firm/company owned/controlled by uneducated persons without any financial capacity and without any experience of marketing of such products and that too without any formal legally binding agreements and without taking any security from them. From the above facts it is clear that it is the DKDBL who are the real persons behind PKD CKD and RSPL. CKD PKD (b) cash and quantity discounts if any given to customers; (c) outward freight from the premises of PKD/CKD/RSPL to their customers premises; (d) rental and repairs & maintenance expenses of PMX machines if the same are included in the price charged. No deduction of salary & wages towards distribution is to be permitted. However the evidence regarding the trade discounts given to the customers and their quantum taxes paid quantum of outward freight from the premises of PKD/CKD/RSPL to the customers premises and rental/repair & maintenance expenses PMX machines and correctness of the PMX machine rentals has to be produced by the appellants for claiming their deduction from the sale price of PKD/CKD/RSPL.

Issues Involved:
1. Whether PKD, CKD, and RSPL are genuine and independent marketing companies or dummy units floated by DKDBL.
2. Whether deductions for rental and maintenance of PMX machines and expenses on salary and wages towards distribution are admissible for determining the assessable value of BIBs.
3. Whether the extended limitation period under Section 11A(1) of the Central Excise Act is applicable.
4. How the duty demand should be quantified.

Detailed Analysis:

1. Whether PKD, CKD, and RSPL are genuine and independent marketing companies or dummy units floated by DKDBL:

The Tribunal found substantial evidence indicating that PKD, CKD, and RSPL are not genuine independent entities but extensions of DKDBL. Evidence included:
- Minimal investments by proprietors of PKD and CKD, and directors of RSPL, with no business experience.
- Direct control by DKDBL over sales, financial transactions, and employee management of PKD, CKD, and RSPL.
- Goods were dispatched directly to customers of PKD, CKD, and RSPL from DKDBL's factory.
- Financial transactions and fund transfers between DKDBL and PKD, CKD, and RSPL without clear explanations.

Based on these findings, the Tribunal held that PKD, CKD, and RSPL were dummy units created to depress the assessable value. Consequently, the assessable value should be based on the price at which PKD, CKD, and RSPL sold the BIBs to independent buyers, not the price at which DKDBL sold to PKD, CKD, and RSPL.

2. Whether deductions for rental and maintenance of PMX machines and expenses on salary and wages towards distribution are admissible for determining the assessable value of BIBs:

The Tribunal allowed deductions for PMX machine rental and repair/maintenance charges, as these expenses are not related to the manufacture of concentrate syrup but to the leasing of PMX machines, which is a separate activity. This decision was supported by previous judgments in similar cases.

However, the Tribunal disallowed deductions for salary and wages towards distribution, citing the Supreme Court's judgment in the Madras Rubber Factory case, which held that marketing and selling organization expenses are includible in the assessable value.

3. Whether the extended limitation period under Section 11A(1) of the Central Excise Act is applicable:

The Tribunal held that the extended limitation period under Section 11A(1) was applicable due to the deliberate evasion of duty by DKDBL through the use of dummy units. This was supported by the fact that the true nature of transactions was only revealed through departmental investigation.

4. How the duty demand should be quantified:

The Tribunal directed that for quantification of duty demand, assessable value should be determined by allowing deductions for:
- Taxes actually paid.
- Cash and quantity discounts.
- Outward freight from the premises of PKD, CKD, and RSPL to their customers' premises.
- Rental and repair/maintenance expenses of PMX machines if included in the price of BIBs.

The Tribunal remanded the matter to the Commissioner for re-quantification of duty demands in accordance with these directions and for the imposition of penalties under Section 11AC based on the re-quantified duty.

Separate Judgments:
- The Tribunal's decision was consistent across the appeals filed by DKDBL and the Department, and no separate judgments by different judges were mentioned.

Conclusion:
The Tribunal concluded that PKD, CKD, and RSPL were dummy units used by DKDBL to evade excise duty. The assessable value should be based on the price at which these units sold the goods to independent buyers, with specific permissible deductions. The extended limitation period for duty recovery was applicable, and the matter was remanded for re-quantification of duty and penalties.

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