2011 (7) TMI 906 - AT - Central Excise

Penalty - period of limitation - valuation - inclusion - On account of the grant of marketing rights and incurring advertisement and publicity expenses and selling expenses, there should be a flow back of money from M/s. VMPL to M/s. VDIL so that the assessable value of the products sold can be revised upwards so as to include these elements in the assessable value - it is further seen that the appellant had filed classification list effective from 1.3.1994 wherein they had declared that the goods are manufactured by the appellant but are marketed by M/s. Vadilal Milk Products Ltd. and the goods are bearing the brand name VADILAL - the existence of the agreement for sale of marketing rights and the incurring of the expenditure by the marketing company was clearly known to the department - Decided in favor of the assessee

Issues:
- Inclusion of marketing rights consideration in assessable value
- Inclusion of advertisement and publicity expenses in assessable value
- Inclusion of marketing and selling organization expenses in assessable value
- Time bar on the demand for duty
- Suppression of facts by the appellant
- Applicability of extended period for demand

Inclusion of Marketing Rights Consideration:
The case involved a dispute where the department alleged that the manufacturer did not include the consideration received for grant of marketing rights in the assessable value of goods cleared to another company. The appellant argued that the grant of marketing rights did not affect the price of the products sold and should not be included in the assessable value. The appellant relied on legal provisions and previous judgments to support their argument.

Inclusion of Advertisement and Publicity Expenses:
The appellant contested the inclusion of advertisement and publicity expenses incurred by the buyer in the assessable value of goods. They argued that such expenses cannot be added as they benefit both the manufacturer and the dealer. The appellant cited a Supreme Court case to support their stance on this issue.

Inclusion of Marketing and Selling Organization Expenses:
Regarding the expenses incurred by the buyer for marketing and selling organization, the appellant argued that these expenses should not be added to the assessable value of the products sold by the manufacturer. They contended that these expenses were part of the buyer's distribution process and should not impact the assessable value.

Time Bar on Demand for Duty:
The appellant raised the issue of time limitation on the demand for duty, stating that the show cause notice was issued after a significant delay. They argued that the demand was time-barred as the department was aware of the transaction details for a long time before issuing the notice.

Suppression of Facts by the Appellant:
The department alleged that the appellant had suppressed facts related to the transaction, justifying the invocation of the extended period for the demand. The department contended that the appellant deliberately withheld information, leading to the demand for duty.

Applicability of Extended Period for Demand:
The department supported the extended period for the demand, stating that the appellant had not disclosed all relevant facts. They argued that the demands were rightfully made due to the appellant's alleged suppression of information. The department cited judgments to support their position on invoking the extended period.

The Tribunal ruled in favor of the appellant, holding that the demand was time-barred due to the department's knowledge of the transaction details and the lack of suppression or misstatement of facts by the appellant. The entire demand for duty, interest, and penalty was set aside based on the time limitation issue. The Tribunal emphasized that the demand for the subsequent period should also be time-barred following the decision on the previous period.

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