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TMI Blog2009 (1) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... related person merely because all the goods are sold to a particular person unless the price charged to him is based or extra commercial consideration - The Commissioner found use of the brand-name “Aquaguard” and “Aquapure” by IAPL without any reliable evidence of the appellants having sold its products affixing either of those brand names. Therefore, the Commissioner had wrongly denied the SSI benefit to the EWP10 cleared by the assessee during the material period - E/192/2002/MAS and E/1062/2004/MAS - 115 and 116/2009 - Dated:- 20-1-2009 - Ms. Jyoti Balasundaram, Vice-President and Shri P. Karthikeyan, Member (T) None, for the Appellant. Shri N.J. Kumaresh, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compared to those charged by EFL. The price of EWP10 supplied to EFL had not been revised for about three years when the authorities took up investigation. Each EWP10 was sold to EFL at Rs. 8,625/- Whereas EWP of five 1pm was sold to others at the same price of Rs. 8,625/-. Some quotations recovered indicated that IAPL had quoted more than double the price of EWP10 for sale to others. In some correspondence with the suppliers of components, the assessee had referred to EFL as principal. Adjudicating allegations of under-valuation of EWP 10 and evasion of duty by suppression of facts by IAPL, the Commissioner demanded differential duty of Rs. 45,46,733/- alongwith applicable interest. He imposed equal amount of penalty under Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utuality of interest between IPAL and EFL without any evidence for the same. There was no evidence for the finding that the appellants had used brand names of others. They had used the brand name of 'Aquapure' owned previously by M/s. Arun Electronics after that company had closed. There was no legal justification for the demand and the penalty. The appellants relied on the judgment of the Hon'ble High Court of Bombay in Ralliwolf Ltd. v. UOI [1992 (59) E.L.T. 220 (Bom.)] in support of the plea that in the absence of mutuality of interest the transaction value had to be accepted for valuation. In the Ralliwolf case (supra) the manufacturer and its buyer were related as a holding company and subsidiary company. The sale price of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants had sold EWP10 to EFL at a margin. The Commissioner has not found any evidence to reject claim of the appellants that it had not revised the price charged on EFL in its business interest. The impugned order does not substantiate the finding that IAPL and EFL conducted their business controlled by mutuality of interest between them. We do not find any legal justification for the Commissioner enhancing the assessable value for charging duty on clearances of EWP10 to EFL during the material period. A price of an excisable item remaining unchanged for a couple of years or that the entire production of such goods is sold to a single buyer cannot constitute ground to hold that the assessable value is depressed to evade excise duty and to il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities Ltd. [1985 (22) E.L.T. 324 (S.C)]. The Apex Court had held that the value of Nestle's trade mark could not be added to the wholesale price charged by the respondent to Nestle's for the purpose of computing the value of the goods manufactured by the respondent in the assessment to excise duty. 8. As regards denial of SSI exemption on the ground that the appellants had applied the brand name belonging to others on the EWP10 sold by it, we find that the appellants had used the brand name "aquapure" owned by M/s. Arun Electronics after it had closed. The Commissioner found use of the brand-name "Aquaguard" and "Aquapure" by IAPL without any reliable evidence of the appellants having sold its products affixing either of those brand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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