2002 (4) TMI 155 - AT - Central Excise

Summary

Issues Involved:

1. Whether Kwality Ice Cream Co. and Brooke Bond Lipton India Ltd. (BBLIL) are to be treated as related persons for computing the assessable value of ice cream.
2. Whether duty should be demanded from the appellant based on the price at which BBLIL sold the product from its depot.

Summary:

Issue 1: Related Persons

The common issue in these appeals is whether Kwality Ice Cream Co. and BBLIL are to be treated as related persons in computing the assessable value of ice cream manufactured by the appellant. The departmental authorities did not accept the appellant's contention that the transaction was on a principal-to-principal basis and that the price was the sole consideration for the sale of goods. The Assistant Commissioner confirmed the demand under several show cause notices and imposed penalties. The Commissioner (Appeals) upheld this view, stating that the terms and conditions of the agreement between the appellant and BBLIL/HLL indicated that the appellant had no independence in running their unit, with all activities controlled by BBLIL/HLL. The Commissioner (Appeals) also noted mutuality of interest due to an interest-free deposit and a non-competition fee.

Issue 2: Duty Demand Based on Depot Price

The appellant contended that the price of the product was determined by a formula agreed upon in the sourcing agreement, not unilaterally by BBLIL. The appellant argued that the exclusive nature of the transaction was binding on both parties and that the appellant had the option to reject BBLIL's suggestions for factory closure or relocation. The appellant also pointed out that the investment for upgradation would be advantageous to them as per the agreed pricing formula.

Judgment:

The Tribunal found merit in the appellant's contentions regarding the method of pricing and the sub-clauses of the sourcing agreement. It held that the price was fixed based on an agreed formula, and the exclusive nature of sourcing applied to both parties. The Tribunal also found that the appellant was not compelled to shut down or relocate its unit against its will. The Tribunal concluded that the conditions in the agreement were appropriate for ensuring product quality and did not constitute unreasonable restrictions.

Regarding the mutuality of interest, the Tribunal noted that the interest-free deposit and the non-competition fee did not affect the price of the product. The Tribunal referred to similar cases, such as LVT Products Ltd. v. CCE and Union of India v. Playworld Electronics Pvt. Ltd., where it was held that such agreements did not make the parties related persons. The Tribunal found that the Revenue had failed to prove that the appellant and BBLIL were related persons and that the transaction was not on a principal-to-principal basis.

Conclusion:

The Tribunal held that the appellant and BBLIL are not related persons, the transaction between them is on a principal-to-principal basis, and the price was the sole consideration for the sale of goods. Therefore, the assessable value cannot be computed based on the price at which BBLIL sold the product from its depot. The impugned orders were set aside, and the appeals were allowed.