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TMI Blog1998 (12) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) in which he had held includible in the assessable value of the beverages manufactured by the assessee the crate hire charges, loading and unloading charges and sales promotion and publicity charges and ordering confiscation of goods on duty payable on these accounts. 2. We have heard Shri Rohan Shah, Advocate instructed by Gagrat Company for the appellants and Ms. Reshma Lakhani, the departmental representative for the respondent. 3. The proceedings initiated by the department were on the basis that the appellant had engaged into transaction with its three distributors in Pune Gorav Investment (P) Ltd. (GIPL for short) M/s. Shree MPJ Builders (P) Ltd. (MPJ Builders for short) and Shree MPJ Cement (P) Ltd. (MPJ Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed only 20% is also emphasised by the Commissioner (Appeals) to show that no expenditure is incurred on these charges and that these charges are nothing other than the price of the goods recovered through these camouflages. The Commissioner (Appeals) has confirmed the Assistant Commissioner s order allowing abatement of Rs. 5 per crate towards crate handling charges. The Commissioner (Appeals) refused to accept the contentions of the appellant before him that the increase in crate hire charges was necessitated by bringing into use of plastic crate from 1-4-1994 in place of the existing wooden crate, as insisted upon by M/s. Coco Cola Corporation with whom the appellant entered into an agreement for manufacture of beverages ybder Coca Cola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal representative emphasises that what the Commissioner (Appeals) found, that these charges were not really incurred in their entirity towards expenses connected with crate hire charges for which the Assistant Commissioner has held Rs. 5 to be appropriate and the balance was additional consideration received as payment for the beverages. She emphasises that the prices at factory prior to and after 1-3-1994 were the same, showing that it is only to avoid payment of duty by manipulating the account. She emphasises that the appellant recovers by means of deposit of 80% of the investment cost. 7. Any charges actually incurred by the assessee towards crate hire charges could not be included for the reason that the assessable value of the cra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge receipt of the purchase price of the beverages. There are two objections to the conclusion. The point is that the assessable value, which would normally be the cost of manufacture, other expenses and profit of the manufacturer were sought to be so recovered, there would be a corresponding reduction, corresponding to the recovery made in these elements. This has not been shown to be the case. The appellant had produced a certificate from M/s. J.G. Jagu Co., Chartered Accountant in support of the contention that their client had not charged. The impugned order does not find that these certificates are not acceptable or incorrect. It would then follow that there is insufficient material to hold that the recovery on account of crate hire c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses incurred subsequent to manufacture. Similarly charges for unloading empty bottles, sorting and cleaning them would not be includible in the assessable value of the finished products. The Supreme Court has held in Vijayawada v. CCE - 1997 (94) E.L.T. 433 that these activities would not be considered to be a part of the process of manufacture of aerated waters. 12. The charges for loading the finished goods in the factory are shown to have been included. 13. It is also to be noted that it has not been shown that there has been any flow back from GIPL of any amount received on loading or unloading to the appellant. The Assistant Commissioner lays emphasis upon the stock holding pattern and GIPL income is disproportionate to its share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alers another sum of Rs. 5.00 per unit on account of sales promotion and publicity charges. The Assistant Collector and Collector (Appeals) have added this amount in the assessable value by relying upon the judgments of the Bombay Tyre International - 1983 (14) E.L.T. 1896 that such cost would form part of the assessable value on marketable product. Subsequently, however, the Supreme Court in Philips India Ltd. v. Collector - 1997 (91) E.L.T. 540 (S.C.) had held that expenses incurred by a dealer towards advertisement of the product of a manufacturer sold by him would not be includible in the assessable value of these goods for the reason that such advertisement benefited the dealer as well as the manufacturer. The contention of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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