2009 (4) TMI 355 - AT - Central Excise

Valuation- the respondents are selling and marketing their products through authorised dealers as per sales policy. The dealers of the respondents are authorised to undertake joint publicity/advertisement and other sales promotion services. The respondent reimburses the said expenditure to an extent of 50% to the said dealers subject to a ceiling of 1% of the annual purchase of the dealers. It appeared to the lower authorities that as per the provisions of Section 4 of the Central Excise Act all such expenses should form part of the value for payment of Central Excise duty. Held that- We find that there is no dispute as to respondents are only reimbursing 50% of the cost of the advertisement and publicity to their dealers. It is also not disputed that the advertisement and publicity done by the dealers is not compulsory on their part to do so. In these facts of the case we find that the decision of the Hon ble Supreme Court in the case of CCE Baroda v. Besta Cosmetics Ltd squarely covers the issue in favour of the assessee. We also find that the learned Commissioner (Appeals) has relied upon the very same judgment. Accordingly we find that the issue is clearly settled by the decision of the Apex court. Hence we do not find any merit in the appeal filed by the Revenue and the same is rejected.

Summary

Issues:
- Whether the advertisement and publicity expenses reimbursed by the respondent to their dealers should be added to the valuation of the final products for determining the assessable value.

Analysis:
1. The appeal was filed against the Order-in-Appeal No. 275/2005-C.E., dated 16-11-2005, concerning the reimbursement of advertisement and publicity expenses by the respondent to their dealers. The lower authorities raised concerns that such expenses should be part of the value for payment of Central Excise duty. A Show Cause Notice was issued for demand of the differential duty, invoking the extended period and proposing penalty under Section 11AC, along with interest under Section 11AB of the Central Excise Act. The Adjudicating Authority, after a personal hearing and submissions from the respondent, dropped all proceedings initiated by the Show Cause Notice. The Revenue appealed before the learned Commissioner (Appeals), who upheld the Adjudicating Authority's order, leading to the current appeal before the Appellate Tribunal CESTAT, Bangalore.

2. The learned SDR contended that the order of the learned Commissioner (Appeals) was not legal and proper, citing Board's Circular No. 643/34/02-C.X., dated 1-7-02, which clarified that advertisement and publicity charges borne by dealers/buyers should be included in the assessable value. The SDR argued that the expenses incurred by the dealers for advertising the respondent's goods should be added to the price of the goods for determining the assessable value, as per the definition of "transaction value" post-1-7-2000.

3. The learned Counsel for the respondent argued that the issue was settled by various decisions of the Supreme Court and the Tribunal, along with Circular No. 643/34/2002-C.X., dated 1st July, 2002. The Appellate Tribunal considered both sides' submissions and records, focusing on whether the advertisement and publicity expenses reimbursed by the respondent to their dealers should be added to the valuation of the final products.

4. The Appellate Tribunal noted the findings of the learned Commissioner (Appeals), emphasizing that the costs incurred by dealers for advertising the respondent's goods should be added to the price of goods for determining the assessable value. The Tribunal agreed that the expenses agreed to be borne by dealers were on their own account and not on behalf of the respondent, as there was no compulsion for dealers to bear such costs. It was concluded that the impugned order should be upheld as the department failed to establish that the costs borne by dealers were on behalf of the respondent, citing relevant Supreme Court decisions.

5. Ultimately, the Appellate Tribunal held that the issue was settled by the Supreme Court's decision in the case of CCE v. Besta Cosmetics Ltd., and rejected the Revenue's appeal, as the advertisement and publicity expenses reimbursed by the respondent to their dealers were not includible in the transaction value. The Tribunal pronounced the operative portion of the Order in open Court at the conclusion of the hearing.