Judgment:
1. Respondent is absent in spite of notice of hearing but has sent a request for disposal of the appeal on merits. We have heard Shri M.Ali, JDR and perused the papers.
2. Respondent, manufacturing voltage stabilisers of various kinds under the brand name 'V Guard belonging to M/s. Prompt India and selling the entire manufactured products to M/s. Prompt India filed Price Lists 1/88 and 2/88 in Part I. Price List No. 2/88 was filed despite instruction of the Range Officer ot file Pirce List in Part IV treating M/s. Prompt India as related person and showing the price at which related person was selling the goods in wholesale. Thereupon show cause notice was issued proposing to treat the price of related person as the basis for determining the assessable value on which the respondent would be liable to pay central excise duty. Respondent resisted the notice denying any relationship between the two and supported the price declared in the price lists. The Assistant Collector accepted the contention and approved the price lists. On the direction of the Collector of Central Excise, an appeal was filed before the Collector (Appeals) under Section 35E of the Central Excise Act, 1944, which was dismissed by the Collector (Appeals). Hence the present appeal by the Department.
3. The only contention urged in the Memo, of Appeal is that besides the price shown in the price lists additional consideration flowed from the buyer to the seller and such additional consideration should become part of assessable value. Additional consideration was by way of cost towards after sales service and guarantee obligations, charges such as marketing and selling organisation expenses, advertisement charges borne by his buyer. Cost towards supply of technical know how and cost of expert deputed by the buyer for supervision of the production of the respondent was borne by M/s. Prompt India.
4. Copy of the show cause notice is not made available to us by the Department but the averments in the show cause notice are referred to in the original order. On going through the original order we find that the only ground urged in the show cause notice was that the respondent and the buyer are related persons and, therefore, assessable value of the goods cleared by the respondent should be based on the price at which the buyer was selling goods in the wholesale market. The show cause notice did not raise any contention of flow of additional consideration from the buyer to the manufacturer over and above the price as shown in the price lists. In our view, the Department cannot agitate before the Collector (Appeals) or before the Tribunal in an appeal against price list approval order, any contention or ground not raised in the show cause notice. It may be open to the Department to initiate action under Section 11A of the Central Excise Act, 1944 if such action is within time. With this observation the appeal is dismissed.