9911796707
TMI Blog1988 (10) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... or to the Central Government for initiating revision proceedings under the then Section 36(2) of the Central Excises Salt Act, 1944. The Appellate Collector sent him a copy of his said letter dated 14/15-4-1980 on 29-8-1988. However, the Respondent is still not represented even though he was duly notified of the date of hearing and he was well aware of it. There is no request for adjournment on record. In the circumstances, the Bench decided to take up the hearing and disposal of this appeal on merits. 2. We have heard the ld. Representative of the Department and have perused the record, particularly the written submissions made by the Respondent in reply to the Central Government s Revision Show Cause Notice dated 30-5-1980 aforesaid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Respondent is, and this is also the view of the Appellate Collector, that it was just a coincident that the orders for the above particular model came only through the agency company. The Respondent makes a hypothetical statement that if other agents/dealers had also placed orders for the aforesaid particular model, they too would have been given the same 10% discount. The Respondent also contends that mutuality of business interest was not established just because the proprietor of the manufacturing unit was also the Kartha of the HUF owned agency company. The Respondent pleads that the manufacturing unit and the agency company were two physically separate entities and were separately assessed for income-tax, sales-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The existence of some interest is all that is required [1984 (17) E.L.T. 323 (SC) - U.O.I. v. Atic Industries Ltd.] and that was there in the two units. In fact, the set-up was such that there was identity of interest as between the two units. For reaching this conclusion, we rely on the judgment of the Hon ble Supreme Court in the case of M/s. Mohanlal Maganlal Bhavsar v. U.O.I. [1986 (23) ELT 3 (SC)]. The case also came under the second part of the definition because other members of the HUF owning the agency company (the distributor) were all close relatives of the proprietor who owned the manufacturing company and the said proprietor was also the Kartha of the distributor unit. This was clearly a case of the distributor being also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, there was no actual sale of Trailers by the Respondent to the dealers , the dealers were only his agents and the so-called discount of 10% was only agent s commission given to them for booking orders for the Trailers. Such commission is not deductible as a trade discount under Section 4, vide 1984 (17) E.L.T. 607 (SC) M/s. Coromondal Fertilisers Ltd. 7. It is also not clear as to whom the dealers and the agency company disposed of the Trailers - whether to direct users or to wholesale dealers. Further, there is nothing on record to Show whether the particular model of Trailer covered by price-list No. 13/76, which is in dispute here, had been offered by the Respondent to all his dealers or only to the agency company. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al wholesale price. 8. The Respondent does not deny that all disposals of the particular model in dispute were only through the agency company. However, he calls it a coincident. His version would be acceptable only if he can prove that he genuinely offered this model to all other dealers also at the same price. Otherwise, it would be reasonable to conclude that this particular model was, by design, marketed only through the agency company which was a related person of the Respondent. In that event, the value would have to be determined in terms of proviso (iii) to Section 4(1) (a) or in terms of Rule 6(c) of the Central Excise Valuation Rules, 1975, depending upon the fact whether the further disposals by the related person were in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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