2000 (9) TMI 696 - Commissioner - Central Excise

Summary

Issues:
Appeal against impugned Order-in-Original | Preliminary objection on filing appeal by department | Merits of the case

Issue 1: Appeal against impugned Order-in-Original
The Assistant Commissioner filed a departmental appeal against an Order-in-Original where the demand was dropped. The Commissioner authorized the appeal and directed its filing. The case involved a Show Cause Notice against a company for recovering extra amounts in the name of advertisement material, which the company argued was part of trading activities and should not be included in the Assessable Value. The Adjudicating Authority dropped the Notice, leading to the department's appeal.

Issue 2: Preliminary objection on filing appeal by department
During the Personal Hearing, a preliminary objection was raised regarding the Commissioner directing the Assistant Commissioner to file the appeal instead of the Adjudicating Authority who passed the Order-in-Original. The argument was based on Section 35E(2) and previous court decisions. The objection claimed that the direction was to an authority other than the one who passed the order, making the review proceedings void. However, the Judge clarified that the appeal's filing authority does not impact the substantive outcome, and the appeal filed by the Assistant Commissioner was not void ab initio.

Issue 3: Merits of the case
The Assistant Commissioner's appeal relied on a Supreme Court judgment regarding expenses increasing product sales forming part of the assessable value. However, the Adjudicating Authority relied on other judgments, including a case where the cost of advertisement borne by the dealer did not form part of the value. In the present case, there was no such agreement, and the cost of literature was optional for dealers, not mandatory. Following previous decisions, the Judge concluded that the cost of optional literature should not be included in the assessable value, upholding the Additional Commissioner's decision.

In conclusion, the Judge rejected the Department's appeal on merits, emphasizing that the cost of optional literature in trading activities should not be considered in the assessable value. The decision highlighted the importance of specific agreements and optional nature of expenses in determining the inclusion in the assessable value, aligning with previous court and tribunal judgments.