2018 (12) TMI 14 - AT - Central Excise

Valuation - Deduction of the sale tax - related party transaction or not - appellant/assessee were removing the aerated waters exclusively to their marketing company i.e. M/s Dhillon Kool Drinks Babarpur/Delhi for further distribution and sale to various sub distributors - applicability of Section 4 of the Central Excise Act - Held that - The adjudicating authority has allowed deduction on account of sales tax on aerated water sold in bottles but failed to give the deduction on account of sales tax on bag-in-box. In fact the same treatment is required to be given for the sale of bag-in-box therefore on account of sales tax which is of inclusive of the price the appellant/assessee is entitled for deduction from the selling price of aerated water in bottles as well as bag-in-box. On account of sales tax the deduction from the assessable value is allowed in terms of Section 4 of the Central Excise Act 1944 - demand to that extent is set aside. The demand for the extended period is also set aside - it is the issue of valuation of goods and no penalty is imposable on the appellant. Appeal allowed - decided in favor of appellant.

Issues: Valuation of goods for Central Excise Duty, Deduction of sales tax on aerated water and bag-in-box, Extended period of limitation for demand, Imposition of penalty

Valuation of goods for Central Excise Duty:
The case involved the appellant/assessee, a franchise bottler of M/s Pepsi Foods Ltd., who were accused of under-valuation of aerated water and post mix syrup, resulting in evasion of Central Excise Duty. The appellant/assessee were allegedly selling the aerated waters exclusively to their marketing company, M/s Dhillon Kool Drinks, without a formal agreement, leading the revenue department to believe that the marketing company was an extension of the appellant/assessee. Three show cause notices were issued and later confirmed by the adjudicating authority. The Tribunal remanded the matter back for adjudication, and in the subsequent order, the demand on sales tax for aerated water sold in bottles was dropped, but not for bag-in-box, resulting in a confirmed demand of ?1,01,00,742. The appellant/assessee contended that certain expenses were not considered for deduction, and the marketing company was not a related person under the Central Excise Act.

Deduction of sales tax on aerated water and bag-in-box:
The appellant/assessee argued that the Commissioner did not allow deductions for expenses related to distribution staff, machine hire charges for bag-in-box, and repair and maintenance charges for PMX machines. They claimed that these deductions were previously allowed by the Tribunal for their philaur unit and should apply in this case as well. Additionally, they contended that the marketing company should not be considered a related person under the Central Excise Act, and thus, the demand based on the selling price to the marketing company should not be confirmed. The Tribunal found that the appellant/assessee were entitled to deductions on account of sales tax for both aerated water in bottles and bag-in-box, setting aside the demand to that extent.

Extended period of limitation for demand:
The Tribunal ruled that no demand was sustainable under the extended period of limitation, as there was no concealment of facts by the appellant/assessee, and thus, set aside the demand for the extended period.

Imposition of penalty:
Given that the issue primarily revolved around the valuation of goods for Central Excise Duty, the Tribunal decided that no penalty was imposable on the appellant/assessee, considering the circumstances of the case. Consequently, the appeals filed by the Revenue were dismissed, and the appeals filed by the appellant/assessee were partly allowed, with the demand being set aside for deductions on sales tax and the extended period.

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