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TMI Blog2011 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... are used by the dealers for advertisement and sales promotion of the appellant’s products, this prima facie amounts to dealers bearing the cost of promotional/POP materials used in the advertisement & publicity of the Appellant’s products - Decided against the assessee Regarding duty demand of Rs. 1,65,19,459 - dealers, during the period of dispute, have incurred an expenditure of Rs. 9,14,65,053/- on the advertisement and promotion of the appellant’s products - As per Appellant’s agreement with their dealers, it is clear that the dealers are under obligation to advertise and promote the Appellant’s products within their area at their (dealers’) expenses - Decided against the assessee by way of direction to deposit the entire amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the expenditure on advertisement and publicity of the appellant s products and such advertisements were to be made with the prior or written approval of the appellant. It was found that during the period from 1-10-2007 to 31-3-2008, the dealers had incurred an expenditure of Rs. 9,88,83,029/- on the advertisements publicity of the appellant s products. 1.2 In addition to above, it was also found that the appellant during the above period were selling promotional materials/POP materials to their dealers, which the dealers were using for advertisement of the appellant s products and it appeared that this amounted to the dealers incurring the expenditure on the items required for advertisement of the appellant s products. The total amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealers undertaking the advertisement activities, this clause did not give the appellant an enferceable right to make the dealers incur advertisement expenses, that the advertisement expenses incurred by the dealers would not be includible in the assessable value/transaction value of the goods, that unless the manufacturer/assessee s enforceable right can be inferred from the agreement with their customers/dealers, the advertisement expenses incurred by the dealers would not be includible in the assessable value, that in this regard, he relies upon the Hon ble Supreme Court s decision in the case of Commissioner of Central Excise, Surat v. Surat Textile Mills Ltd. reported in 2004 (167) E.L.T. 379 (S.C.), that the same view has been taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealers to incur that expenses and hence, this amount received by the appellant is for the reason of or in connection with the sale of their goods and hence, would be includible in the assessable value, that the issue involved in this case is squarely covered in the department s favour by the judgment of the Larger Bench of the Tribunal in the case of Maruti Udyog Ltd. (sic) reported in 2010-TIOL-1127-CESTAT (Delhi-LB) = 2010 (257) E.L.T. 226 (Tri. - LB) that the appellant have not been able to establish prima facie case and that in view of this, this is not the case for waiver from the requirement of pre-deposit. 5. We have carefully considered the submissions and perused the records. 6. The duty demand of Rs. 13,39,756/- is in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the dealers are under obligation to advertise and promote the Appellant s products within their area at their (dealers ) expenses. As per the definition of Transaction Value as given in Section 4(3)(d) of the Central Excise Act, 1944, the transaction value includes, in additional to the amount charged as price - (a) any amount which the buyer is liable to pay to Assessee or pay on behalf of the Assessee, by the reason of, or in connection with sale; and (b) any amount charged for, or to make provision for, advertising a publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, etc. Since the dealers in terms of their agreement with the Appellant have to make provision for inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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