9911796707
TMI Blog2004 (10) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... of such distributor. It is also not disputed by the Revenue that there are other partners in the assessee firm as well as there are other directors in M/s. Marc Lab. Thus, one common person will not make a partnership firm related person of a company. There is also no force in the findings in the impugned Order that M/s. Marc Lab sold the goods at a price higher than the price charged by the assessee from M/s. Marc Lab. This is expected in the normal course of business and nothing is unusual. Thus, we hold that M/s. Marc Lab is not the related person of the assessee and the duty has to be discharged by them on the price at which goods are sold by them to M/s. Marc Lab. We, thus, allow the appeal filed by M/s. Marc Pharmaceuticals. Once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following partners - S/Shri Prem Kishore, Nitin Kishore, Vibhash Anand and Mrs. Suraj Devi; that they had sold their entire production to M/s. Marc Laboratories Pvt. Ltd. of which Shri Prem Kishore is one of the directors; that two show cause notices were issued to them for demanding differential duty on the grounds that they are not eligible for small scale exemption since they were using the brand name MARC belonging to another person, their clearances are to be clubbed with the clearances of Marc India and Marc Lab and that Marc Lab are related person within the meaning of Section 4(4)(c) of the Central Excise Act and the price at which Marc Lab sells the goods is to be taken as the basis for payment of duty by M/s. Marc Pharmaceuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuality of interest has to be established by means of financial flow back between the two units; that there is neither an averment in the show cause notice nor in the impugned Order to the effect that there is any flow back between them and Marc Lab; that merely because the price at which Marc Lab sold goods is higher than the price charged by them, it cannot be claimed that there is mutuality of interest; that, further, the fact that entire production is sold to Marc Lab would not establish mutuality of interest. He relied upon the decision in the case of CCE Cus. v. Besta Cosmetics Ltd., 2000 (116) E.L.T. 293 (T) wherein the Tribunal has held that units are not related persons even if the assessee company s Chairman is also director in bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct as the Revenue has filed the Review Petition and the notice has been issued by the Supreme Court; that in the present matters, the price charged by the Depot of the related person has been adopted as the same is more than the value charged by the assessee; that thus it cannot be considered as cum-duty price. 5. We have considered the submissions of both the sides. At the relevant time, as per Section 4(4)(c) of the Central Excise Act, related person means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee and any sub-distributor of such distributor. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cumulatively are sufficient to hold that transaction between CCCL and PCPL are not at arms length, or that the dealings were not based on normal commercial consideration and that, therefore, hold that the price at which PCPL sold detergent powder and cake to CCCL is to be treated as the normal price under Section 4(l)(a) of the Central Excise Act, 1944 the Tribunal s judgment in the case of Collector of Central Excise v. Naga Detergent Ltd., reported in 1995 (77) E.L.T. 100 wherein the Tribunal held that Tata Oil Mills Co. (TMOCO) who entered into an agreement with the respondents for manufacture and supply of detergent cakes under the brand name Super 501 was to be regarded as wholesale dealer and the assessable value of the goods clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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