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TMI Blog2002 (8) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... t the manufacturer, i.e. the respondent and the distributor i.e. Vadilal Enterprises Ltd. were related persons. In deciding so, the appellate authority in the impugned order has held that the advertisement expenses incurred by the distributor should not be included for purpose of valuation. 2. The respondent is a manufacturer of well known ice cream in Gujarat. In dealing with the said product in the course of ordinary commercial way, on 15th January, 1990 they had entered into a distribution agreement with another company called Vadilal Enterprises Ltd. whereunder both parties agreed that the manufacturer shall sell and the distributor shall purchase all the milk products manufactured by the manufacturer at the prices determined by the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said case by the Supreme Court are present. As far as the other point is concerned, namely advertisement expenses, several case laws have been cited in the grounds of appeal as indicated below :- VRM Match Industries v. CCE - 1989 (39) E.L.T. 149 Eddy Current Controls India Ltd. v. CCE - 1989 (39) E.L.T. 147 (T) UOI v. Atic Industries Ltd. - 1984 (17) E.L.T. 323. 4. As against this, learned Senior Counsel Shri Kamal Trivedi appearing along with Shri Uday Joshi, Advocate, argued that as far as the question relating to related person is concerned, he has filed an affidavit of the manufacturer company stating that the shareholding profile shows that one group of Gandhi family at 7.89% and the relatives of the said directors have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, unsold stock lying with the Gillanders were to be returned to the appellants. This type of existence of fact is absent in the instant case. As far as the advertisement charges are concerned, he argued that after the goods have been sold, the advertisement expense has been incurred only by the purchaser, namely Vadilal Enterprises Ltd. He also relied on the judgment of the Tribunal in CCE v. Mercedes Benz (I) Ltd. - 2001 (137) E.L.T. 93 and the judgment of the Supreme Court in Alembic Glass Industries Ltd. v. CCE - 2002 (143) E.L.T. 244 (S.C.), Civil Appeal No. 969 of 1995 where the Supreme Court has reversed the judgment of the Tribunal in the case of Alembic Glass Industries Ltd. v. CCE - 1997 (95) E.L.T. 292 referred to in the said Mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We are therefore of the view that, on the basis of the evidence brought before us, we cannot differ from the finding of facts recorded by the appellate authority. Moreover it has been rightly argued by the learned Senior Counsel for the Respondent that the facts in the instant case are different from the case decided by the Supreme Court in Snow White Industrial Corporation v. CCE - 1989 (41) E.L.T. 360 as is evident from the facts revealed in paragraph 5 of that judgment which is absent in this case. 7. In Snow White Industrial Corporation v. CCE, the Supreme Court had for consideration before it whether the agreement entered into between Snow White Industrial Corporation and Gillanders Arbuthnot Co. Ltd., Calcutta for sale of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les to be made directly by the respondent or for return of unsold stock to the manufacturer. In other words, none of the factors which characterised an agreement for setting up an agency for sale as distinct from the sale of goods is present. The appeal itself in fact does not cite any such feature. Neither of the two authorities who considered the agreement has found any such feature. On the other hand, the provision in the agreement that the respondent is not restricted by the agreement from selling the goods to any other person will apply in its favour. The only feature common with the agreement considered by the Supreme Court is the provision that Vadilal Enterprises shall endeavour to take necessary steps to market and sell the milk an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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