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TMI Blog1999 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the issue relates to the denial of exemption in terms of Notification No. 120/75 on the ground that the price at which the appellants had sold the goods to Fenner (India) Ltd. who was analysed by financial relationship, since the Fenner (India) Ltd. is a holding-company of the appellants. He submitted that the appellants are engaged in the manufacture of pulleys, bush and cushion type flexible coupling falling under tariff item No. 68 of the erstwhile First Schedule to the Central Excise Act, 1944. w.e.f. 1-3-81, the appellants opted to avail the exemption Notification 120/75, dated 30-4-75. The appellants paid the duty on the invoice price charged by them for the sale of goods. The proceedings were initiated against the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that the burden squarely lies on the department to prove that price at which goods are sold by the appellants to M/s. Fenner (India) Ltd. is influenced. No evidence has been placed on record to except denying the benefit of exemption in terms of Notification 120/75 on the ground that buyer M/s. Fenner (India) Ltd. is a related person. He said that the issue involved herein has been squarely covered by the decision in the case of M/s. Graphite India Ltd. v. CCE reported in 1989 (44) E.L.T. 398. 4. He also submitted that it is on record that during the period, the party has sold the goods at the same price to other buyers other than M/s. Fenner (India) Ltd. He also said that Fenner (India) Ltd. has procured the similar goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption cannot be extended. We find that the very issue has been considered by the Tribunal in the case of Graphite India Ltd. referred to above and the analysed position particularly in paras 4 and 5 of the said judgment. The same is as under :- We have considered the submissions before us. Notification No. 120/75, dated 30-4-1975 exempts goods falling under Item No. 68 CET, cleared from the factory of manufacture, on sale, from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the invoice price (excluding duty and local taxes, if any, included in such price) charged by the manufacturer for the sale of such goods. There are several conditions set out in the notification. Relevant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding-company, a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. In the aforesaid case, the Supreme Court held that it is not enough that the assessee has an interest, direct or indirect, in the business of the person alleged to be a related person has an interest, direct or indirect, in the business of the assessee. It is essential to attract the applicability of the first part of the definition of related person ( a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other ) that the assessee and the person alleged to be a related person must have interest, direct or indirect, in the business of each other. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip, the department has to establish that the invoice price has been influenced by that relationship. In the present case, the department has not done that. 7. In the case before the Supreme Court (Union of India v. Atic Industries reported in 1984 (17) E.L.T. 323 (S.C.), the Court observed that it failed to see how it would be said that a Limited Company has any interest direct or indirect, in the business carried on by one of its shareholders even though the share holding of such shareholder may be 50%. Following the ratio of the Apex Court the Tribunal in the case of Graphite India Ltd. (supra) held that even if for argument s sake, it is to be assumed that there exists a financial relationship, the department has to establish invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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