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TMI Blog1997 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ee lakhs and Rs. one lakh respectively, the duty demand pertaining to the period 1-11-1982 to 31-3-1987. Actually, in the order challenged by the first appellant, M/s. Bisleri Beverages (P) Limited, the duty demand of Rs. 36,69,497.30 has been made on M/s. Parle Exports Pvt. Limited, Ahmedabad but penalty has been imposed on Bisleri. A copy of this order has been marked only to M/s. Bisleri Beverages (P) Limited and not to Parle Exports. The demand of duty as also the penalty has been challenged by M/s. Bisleri Beverages (P) Limited apparently accepting the position that the duty demand is on them. We take it to be a mistake in the order in showing the name of the assessee against whom the demand of duty has been confirmed and proceed to deal with the appeals. In both the cases, the duty demands have been arrived at by including in the assessable value of their product. Non- Alcoholic Beverage Bases or Concentrates,the sums paid by their customers towards the cost of advertising of the aerated waters manufactured from such beverage bases by the latter on franchise from the appellants and marketed under their(appellants') brand names. The extended period of limitation under the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, challenged by the department in the Supreme Court and the appeal was allowed vide judgment dated 22-11-1988 [Collector of Central Excise v. Parle Exports (P) Ltd. - 1988 (38) E.L.T. 741]. They have filed a Review Petition in the Supreme Court. That apart, it was their bona fide belief that the advertisement expenses relating to aerated water were not relevant for levy of duty on beverage bases. It cannot, therefore, be held against them that they had suppressed any material fact from the department with intention to evade duty. Moreover, even if it is held that they were liable to pay duty on their goods, beverage base after adding the cost of advertising of aerated waters, such extra duty would be available for reducing the duty burden of the product aerated water, at the hands of the bottlers. The appellants could have passed on such duty on the beverage bases to the bottlers and there was thus no motive for them for non payment of duty on the disputed value. In the circumstances, the longer period of limitation was not applicable. The learned counsel relied upon the Supreme Court decisions' in Tamil Nadu Housing Board v. Collector of Central Excise, Madras - 1994 (74) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard was held by the Members, S/Shri P.K. Desai and Lajja Ram. The former observed in his order that the appellants' contention that they never advertised for sale promotion of the concentrates and that the said expenses were not includible in the assessable value (of the beverage base) did not appear convincing as, by such advertisements, they have been ultimately enhancing the marketability in trade of the concentrates for beverages. Member Shri Lajja Ram took the view that the advertisement in question was directly relatable to the manufacturing activity of the appellants (manufacturer of beverage bases) and that when the appellants were advertising in any manner, they were advertising for themselves and it could not be said that their advertisement did not enrich the value of their product, did not enhance its marketability in the trade and that the advertisement cost should not form part of their product. It was, therefore, held that the expenditure incurred on advertisements by the appellants should form part of the assessable value of the beverage base. 7. A similar view was taken by another Bench of the Tribunal in Delhi Bottling Company (P) Limited v. CCE, New Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licity or expenses of storage of finished excisable goods". The expression "finished excisable goods" applies to expenses of storage and not to expenses of advertisement or publicity. The said word "expenses" has been used to refer to for advertisement or publicity and again separately for storage which would indicate that the expenses which were held to be ineligible for deduction included - (1) Expenses for advertisement or publicity. (2) Expenses of storage of finished excisable goods. This position gets confirmation from the detailed judgment in the case. In paragraph 49 of the said judgment reported in 1983 (14) E.L.T. 1896 it has been observed that the price of an article is related to its value and into that value have poured several components including those which have enriched its value and given to the article its marketability in the trade and hence the expenses incurred on account of several factors which have contributed to its value upto the date of sale are liable to be included. Consequently, marketing and selling organisation expenses including advertisement expenses cannot be deducted. It was then observed that advertisement expenses, marketing and selling org ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Supreme Court. That apart, even during this period, the appellants were paying duty on beverage bases but only on their invoice prices. They, however, did not include the advertisement expenses recovered by them. Whether such omission on their part was due to any bona fide belief on their part has to be considered independent of the contention that beverage base was eligible for exemption. The Collector has held that the separate recovery of advertisement expenses from the customers was not declared to the department by the appellants and that this constituted suppression to attract the proviso to sub-section (1) of Section 11A of the Central Excise Act. During the next period the appellants did not so incur the advertisement expenses themselves initially or recover them from the customers but such advertisement work was carried out by another agency and payments were made by the concerned customers to such agency directly. It has been held that this agency was a dummy, set up by the appellants and that it was not an independent agency. The staff of the appellants were involved in that agency and ran it. Again when the above arrangement for centralised advertisement was give ..... 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