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TMI Blog2009 (11) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... t and profit from such independent buyers. - E/1485/2004 - 1819/2009 - Dated:- 25-11-2009 - Ms. Jyoti Balasundaram, Vice-President and Dr. Chittaranjan Satapathy, Member (T) REPRESENTED BY: Ms. Indira Sisupal, JDR, for the Appellant. Shri S. Murugappan, Advocate, for the Respondent. [Order per: chittaranjan Satapathy, Member (T)]. - This is an appeal filed by the Department based on the Review Order No. 167-R/2004 dated 21-9- 2004 passed by the Board. The issue involved in this case relates to the question of adding the reimbursed amount received from the brand owners [M/s. Konica] towards advertisement expenses incurred by the respondents, to the assessable value of film rolls manufactured and sold by the respondents. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional consideration flowing directly or indirectly from the buyer to the assessee is to be added to the price. No evidence either direct or indirect has been adduced to prove such flow back. The assessee in their defence have also cited several case laws including the Tribunal decision in the case of Haryana Drinks Pvt. (Ltd.), which squarely applies to this case, as the facts are similar. Also, as rightly contended by the assessee, while there can be no dispute that advertising often makes an important contribution to enriching the value of a product, unless there is a flow back, its inclusion or otherwise would merit discussion only in a context where a plea is made for deduction of such expenses from the factory price for arriving at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the factory gate. Where the price contemplated under the old Section 4(a) or under the new Section 4(1)(a) is not ascertainable, the price is determined under the old Section 4(b) or the new Section 4(1)(b). Now, the price of an article is related to its value (using this term in a general sense), and into that value how poured several component, including those which have enriched its value and given to the article is marketability in the trade. Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included. Consequently, where the sale is effected at the factory gate, expenses incurred by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts poured into the value of the goods under assessment. 3. Shri S. Murugappan, learned counsel, appearing for the respondents states that the Valuation Law and the Central Excise Valuation Rules do not pro vide for inclusion of any consideration received from other sources unless the same are from the buyers of the goods. In this connection he cites the decision of the Tribunal in the case of CCE, Surat v. Surat Beverages (P) Ltd. - 2008 (232) E.L.T. 830. He also states that this view has been upheld by the Hon'ble Supreme Court in the case of CCE, Meerut v. Bisleri International Pvt. Ltd. - 2005 (186) E.L.T. 257 (S.C.). He states that in para 13 of the decision in Bisleri International (supra) it has been held that the price support inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a burden on the assessee manufacturer and the same does not form part of the cost of the impugned goods. In any way, in this particular case, the method of valuation is not based on the costing method but is based on the transaction value. Therefore, the price at which the respondents are selling their product to independent buyers can be taken as the assessable value as they would recover their cost and profit from such independent buyers. The additional expenses incurred by them to wards advertising for which they are receiving reimbursement from M/s. Konica has no relationship with the assessable value of the impugned goods sold to the independent customers, the same is not flowing back directly or indirectly from the buyers and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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