9911796707
TMI Blog1997 (12) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 and imposing penalty of Rs. 5000.00 under Rule 173Q of the Rules, is under challenge in this appeal. 2. Appellant, manufacturer of aerated water concentrates and aerated waters of certain brand names entered into contract for supply of concentrate to various bottling companies and was supplying the same on payment of duty on invoice value, availing benefit under Notification No. 120/75. On scrutiny of invoices and other records, it was found that appellant had issued two sets of sale invoices for sale of concentrates with identical serial numbers, dates and description of buyers, one set of sale invoices showing the agreed price and the second set of sale invoices for the amount of "reimbursement of co-operative All India Advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of an earlier period, the adjudicating authority passed Order-in-Original No. 68/88, dated 29-10-1984 (sic) against the appellant on account of separate collection of charges for advertisement of aerated waters from the buyers of concentrates. The Tribunal dismissed the appeal by Final Order No. 2119/96-A. This decision is seen reported in 1996 (66) ECR 713 (Tribunal) = 1996 (15) RLT 685. We are told that the appellant has filed an appeal before the Supreme Court against this order and the same has been admitted, though no order of stay has been passed. In these circumstances, we are obliged to follow the earlier decision. 5. The Tribunal in the above case followed another decision of a three-Member Bench of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain supply of concentrates only from the appellant and to follow stipulated conditions with regard to manufacture, packing, packing price, marketing, etc. The appellant introduced "co-operative advertisement scheme" the purport of which is explained in paragraph 7 of the decision reported in 1996 (66) ECR 713 (Tribunal) = 1996 (15) RLT 685. Under the scheme the franchisee is required to pay a share of the cost of advertisement, based on the supplies of concentrate made to him. The advertisement was in respect of aerated waters bearing the brand name owned by the appellant. It was in these circumstances that the Tribunal held in the two earlier cases that such advertisement enriched the value and marketability of the concentrates in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he would have considered the question of apportionment of advertisement expenditure between the concentrate supplied by the appellant and the aerated waters manufactured by the bottlers. It is stated that the appellant expressed inability to produce data regarding the criteria adopted for fixing different rates for companies for reimbursement of advertisement expenses. The authority did not attempt apportionment in the absence of data. Learned Counsel for the appellant submitted before us that it will be possible for the appellant to furnish all relevant data before the adjudicating authority if an opportunity is granted. 9. We have held that advertisement and publicity in regard to aerated waters enhances the marketability of conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement launched by the manufacturer of concentrates helped him as well as the buyers of concentrates who manufacture aerated waters. It was for the adjudicating authority, under these circumstances, to have collected data from all available sources, such as the appellant and the buyers in order to arrive at a conclusion as to the part of the advertisement cost recovered from the bottlers which should be treated as the cost referable to the enhanced marketability of the concentrates for the purpose of adding the same to the assessable value of concentrates. We asked learned Counsel for the appellant whether the appellant would be in a position to make available such data and he after consulting the Manager (Excise) of the appellant stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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