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TMI Blog2018 (10) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... e as well as his dealers and a part of expenses of the promotion activities are borne by the dealer and incurring such expenses on sales promotion is optional and not compulsory, to the extent such expenses are incurred by the dealers, the same would not be includible in the assessable value. Also, there is no evidence brought on record by the department to prove that the dealers in terms of their agreement with the appellant were under obligation to share 50% of the expenses on distribution of diaries and calendars to the customers as promotion gifts. Appeal allowed - decided in favor of appellant. - Appeal No. E/2916/2011 - A/63053/2018-EX[DB] - Dated:- 6-9-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid duty amounting to ₹ 16,24,851/- alongwith interest and also for imposition of penalty under Section 11AC. This show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 20.07.2010 by which the Additional Commissioner dropped the proceedings following the judgments of the Apex Court in the cases of Philips India Ltd. Vs. CCE, Pune reported in 1997(91) ELT 540 (SC) and CCE, Baroda vs. Besta Cosmetics Ltd. Reported in 2005 (183) ELT 122 (SC). 3. The Commissioner reviewed this order under the provisions of Section 35E(2) of the Central Excise Act, 1944 and directed the adjudicating authority to file review Appeal before the Commissioner (Appeals) and in pursuance of this direction of the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taylor reported in 2010 (249) ELT 251 (Tri. Bang.) wherein the Tribunal relying upon the Apex Court s judgment in the case of CCE, Baroda vs. Besta Cosmetics Ltd. 2005 (183) ELT 122 (SC) held that when advertisement and publicity expenses are incurred by the dealer 50% of which are reimbursed to them by the assessee and the incurring such expenditure on advertisement and publicity is not compulsory, the same would not be includible in the assessable value; that same view has been taken by this Tribunal in the case of TVS Motor Company ltd. Vs. CCE, Chennai reported in 2008 (229) ELT 559 (Tri. Chennai) and also by the Tribunal in the case of CCE, Indore Vs. Kinetic Motors Co. Ltd. 2010 (262) ELT 263; that the Tribunal in anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be includible in the assessable value. In this case there is no evidence brought on record by the department to prove that the dealers in terms of their agreement with the appellant were under obligation to share 50% of the expenses on distribution of diaries and calendars to the customers as promotion gifts. We are of firm view that the above mentioned judgments of the Tribunal and the judgment of the Apex Court in the case of CCE, Baroda Vs. Besta Costmetics Ltd. (Supra) are applicable to the facts of this case. 8. In result, the impugned order confirming demand along with interest and imposing penalty on the appellant is set aside. 9. With these terms, the appeal is allowed with consequential relief. (Dictated and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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