1997 (12) TMI 277 - AT - Central Excise

Summary

Issues:
1. Challenge to the order confirming demand and penalty under Central Excise Rules.
2. Allegations of fraudulent device to evade duty and suppression of material information.
3. Challenge on merits and limitation grounds.
4. Application of earlier decision against the appellant.
5. Interpretation of the cost of advertisement in relation to the assessable value.
6. Requirement of apportionment of advertisement expenditure between concentrates and aerated waters.
7. Compliance with Notification No. 120/75 and invocation of proviso to Section 11A of the Act.
8. Need for providing an opportunity to produce necessary data for apportionment of advertisement cost.

Analysis:
The judgment pertains to an appeal against an order confirming a demand of duty and imposing a penalty under the Central Excise Rules. The appellant, a manufacturer of aerated water concentrates, was found to have issued two sets of sale invoices for concentrates, one reflecting the agreed price and the other for amounts labeled as "reimbursement of co-operative All India Advertisement." The appellant failed to disclose these amounts for advertisement in the invoices submitted to Excise officers, leading to allegations of wilful suppression of material information to evade duty. The appellant challenged the order both on merits and limitation grounds, but the adjudicating authority upheld the demand and penalty.

The Tribunal noted a previous decision against the appellant regarding the collection of charges for advertisement of aerated waters. Following this precedent and another case involving a similar issue, the Tribunal held that the cost of advertisement should be included in the assessable value of the concentrates. The appellant's argument against this view was overruled by the Tribunal.

Regarding compliance with Notification No. 120/75 and the proviso to Section 11A of the Act, the Tribunal found that the appellant failed to disclose the collection of advertisement charges, which should have been included in the invoice price for excise duty calculation. The Tribunal referenced a Supreme Court decision emphasizing the inclusion of elements enhancing product value in the assessable value.

The Tribunal acknowledged the need for apportioning advertisement expenditure between concentrates and aerated waters but found insufficient data provided by the appellant for such apportionment. Considering the potential impact of advertisement on both products, the Tribunal directed the appellant to produce relevant data for a proper apportionment of advertisement costs.

In conclusion, while confirming the lower authority's findings on merits and limitation, the Tribunal set aside the order for failing to apportion the cost of advertisement. The case was remanded to the adjudicating authority for a fresh decision after providing the appellant with an opportunity to present necessary data for the apportionment. The appeal was allowed in this manner.