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TMI Blog2011 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... t. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the Advocate for the appellants and the DR for the respondent. This appeal arises from the order dated 28-2-2005 passed by the Commissioner (Appeals), Chandigarh. By the impugned order, the appeal filed by the Department against the order of the adjudicating authority has been allowed and the order of the adjudicating authority has been set aside. Consequently, the duty amount to the tune of Rs. 2,57,770/- stands confirmed against the appellant along with interest payable thereon along with penalty of Rs. 50,000/-. Hence the present appeal. 2. The appellants are engaged in the manufacture of cast iron classifiable under Chapter 73 of the Schedule to the Central Excise Tariff Act, 1985. In the course of audit by the audit authority, it was observed that the appellants had incurred certain expenses towards publicity and advertisement but the same were not included in the assessable value for the purpose of payment of central excise duty. On being asked about the details as regards such expenditure, the same were supplied by the appellants to the Department under their letters dated 17-9-03 and 6-1-04. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instructions issued by the Joint Secretary, Government of India on the File No. 354/81/2000-TRU, dated 30-6-2000 on the subject of transaction value and more particularly, to para 6 and 7 of the said instruction, it was submitted that the transaction value is always understood to be relating to the amount recoverable from the buyer or the amount which the buyer spends in relation to the advertisement or publicity of the product. 4. On the other hand, the Departmental Representative placing reliance in the decision of the Larger Bench in the matter of Maruti Suzuki India Ltd. v. C.C.E., Delhi-III reported in 2010 (257) E.L.T. 226, and specifically drawing attention to paras 16, 17, 18 of the said decision, submitted that the term transaction value would include all the elements which are integrally connected with the sale of excisable goods and therefore, whatever expenses which the manufacturer incurs in relation to the advertisement or publicity will have to be included in the assessable value of the product. Further, drawing our attention to the definition of the term transaction value he submitted that the expression to make provision for is preceded by another exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean that they are restricted or limited to those which are specifically identified. In this inclusion part of definition, the legislature has used the word any amount at two places, thereby clearly disclosing the extensive nature of the definition. Thereafter, the definition clause specifically identifies the items which stand excluded from the transaction value, which is absolutely restrictive in nature. 18. On the whole, the definition of the expression transaction value is neither restrictive in nature nor exhaustive but illustrative and inclusive. The definition clause uses terms like means , includes , including, but not limited to , and but does not include . The word includes has been suffixed by the phrase in addition to . Apparently, it is a definition of extensive nature and at the same time it is restrictive and exhaustive in relation to the items to be excluded therefrom. It discloses to be of vary wide and extensive in nature and it is evident from the use of the expressions like includes in addition to and including but not limited to . At the same time, it precisely pinpoints the items which are excluded therefrom, with the prefix as but does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment for the purpose of direct taxes. However, in relation to the manufacturer, it would be an indirect consideration received by the assessee in relation to the clearance of the product manufactured by him. 21. The term sale used in die definition clause should not be misunderstood as having used, otherwise than to identify the stage at which the product is cleared to the customer i.e. the buyer thereof and the price element which is to be considered for the purpose of deciding the issue relating to the assessable value of the manufactured goods. It essentially denotes the total consideration payable by the buyer for the product which is to be considered while calculating the assessable value of the goods for the purpose of determining the duty liability under the said Act. It is totally different from the liability relating to sale tax. This is apparent from the scheme of the Act as well as the intent and spirit of the Section 4 itself. Considering the definition of the transaction value as is found in Section 4(3)(d) of the said Act and observations made by the Larger Bench, it is abundantly clear that the expression to make provision for which is in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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