Commissioner of Central Excise, Vs. M/S. Cachet Pharmaceuticals - Court Judgment

Excerpt:
1. this is an appeal at the instance of the revenue. the correctness of the order-in-original no.52/99 dt/31.12.99 passed by the commissioner of central excise, jaipur is the issue before us. the commissioner while passing the impugned order held that the advertisement charges incurred by the buyers are not to be included in the assessable value of the final products of the assessee for the purpose of levy of excise duty. this stand of the commissioner is sought to be challenged on the ground that the agreement between assessee manufacturer and their agents marketing dealers was not at arms length on the ground that the manufacturer retains control over the retail price at which the goods are to be sold.2. before dealing with the grounds mentioned in the memo of appeal , we think it proper to deal with the specific case put forth by the department in the show cause notice. the show cause notice issued is cryptic, in the sence it does not make out any basis for its issue. the reasons for issue of scn are to be searched out from the statement of facts appended to scn. paragraph 14 of the statement of facts brings out the reason for issuing the scn and that reason is made out from condition 4 of the agreement entered into the manufacturer on other.the statement of facts attached to the scn brings out the reason as:- "condition 4 of the agreement specifies that alkem (marketing dealers) shall fix as also revise its own selling price to its stockist, wholesalers and other depending on market behaviours, sales, promotion activities, publicity expenses etc. which clearly reveal that sales promotion expenses and publicity expenses are being borne by alke. in this contest, the point to be noted is that although cachet is manufacturer, they do not have their own marketing arrangement. had they not entered agreement with alkem and ind-chemie to sel their goods they would have to set up their own marketing organisation or arrangement. in such eventuality they would have incurred the sales promotion and publicity expenses and the same would have been included in the assessable value." from this averment, it is crystal clear that the expenses incurred by alkem for sales promotion and publicity expenses should be included in the assessable value of the goods manufactured by cachet, the assessee.the show cause notice also stated that by virtue of this clause 4 of the agreement the transaction between the manufacturer on the one hand and the dealer on the other is not on arms length. except stating that the transaction is not at arms length, no ground known to law is ever mentioned in the scn to substantiate this contention.3. the apex court in the decision in philips india vs. collector of central excise, pune- 1997 (91) elt 540 accepted that the advertisement expenses incurred by the dealer is not to be added to the assessable value of the goods manufactured by the assessee. even though that statement of law was doubted and was referred to a bench of 3 judges in commissioner of central excise, hyderabad vs. m/s.v.s.t. industries limited, the bench of 3 judges approved the law laid down in philips india limited by dismissing the civil appeal by order dated 1.3.2001.so it is not open to the department to contend that the expenses incurred by the dealers for sales promotion and publicity should be added to the assessable value of the manufactured goods for levying duty under central excise act from the manufacturers.4. the assessee has preferred a memo of cross objection. in reply to the scn, the assessee had raised a contention of bar of limitation.without going into that issue, the commissioner dropped the demand on the merits of the claim itself. when the revenue came up in appeal , the assessee preferred a memo of cross objection contending that the claim put forth in the scn is barred by limitation. since we find that on merits, the revenue has no case to succeed, issue on limitation need not be gone into. consequently we are not examining the issue as to whether the action taken by the department is barred by limitation or not.5. in view of what has been state above, we dismss both appeal and cross objections.

Judgment:
1. This is an appeal at the instance of the Revenue. The Correctness of the Order-in-Original No.52/99 dt/31.12.99 passed by the Commissioner of Central Excise, Jaipur is the issue before us. The Commissioner while passing the impugned order held that the advertisement charges incurred by the buyers are not to be included in the assessable value of the final products of the assessee for the purpose of levy of excise duty. This stand of the Commissioner is sought to be challenged on the ground that the agreement between assessee manufacturer and their agents marketing dealers was not at arms length on the ground that the manufacturer retains control over the retail price at which the goods are to be sold.2. Before dealing with the grounds mentioned in the Memo of Appeal , we think it proper to deal with the specific case put forth by the department in the show Cause Notice. The Show Cause Notice issued is cryptic, in the sence it does not make out any basis for its issue. The reasons for issue of SCN are to be searched out from the statement of facts appended to SCN. paragraph 14 of the statement of facts brings out the reason for issuing the SCN and that reason is made out from condition 4 of the agreement entered into the manufacturer on other.

the statement of facts attached to the SCN brings out the reason as:- "Condition 4 of the agreement specifies that Alkem (marketing dealers) shall fix as also revise its own selling price to its stockist, wholesalers and other depending on market behaviours, sales, promotion activities, publicity expenses etc. which clearly reveal that sales promotion expenses and publicity expenses are being borne by Alke. In this contest, the point to be noted is that although Cachet is manufacturer, they do not have their own marketing arrangement. Had they not entered agreement with Alkem and Ind-Chemie to sel their goods they would have to set up their own marketing organisation or arrangement. In such eventuality they would have incurred the sales promotion and publicity expenses and the same would have been included in the assessable value." From this averment, it is crystal clear that the expenses incurred by Alkem for sales promotion and publicity expenses should be included in the assessable value of the goods manufactured by Cachet, the assessee.

The Show Cause Notice also stated that by virtue of this Clause 4 of the agreement the transaction between the manufacturer on the one hand and the dealer on the other is not on arms length. Except stating that the transaction is not at arms length, no ground known to law is ever mentioned in the SCN to substantiate this contention.

3. The Apex Court in the decision in philips India Vs. Collector of Central Excise, Pune- 1997 (91) ELT 540 accepted that the advertisement expenses incurred by the dealer is not to be added to the assessable value of the goods manufactured by the assessee. Even though that statement of law was doubted and was referred to a Bench of 3 Judges in Commissioner of Central Excise, Hyderabad Vs. M/s.V.S.T. Industries Limited, the Bench of 3 Judges approved the law laid down in philips India Limited by dismissing the civil appeal by order dated 1.3.2001.

So it is not open to the department to contend that the expenses incurred by the dealers for sales promotion and publicity should be added to the assessable value of the manufactured goods for levying duty under Central Excise Act from the manufacturers.

4. The assessee has preferred a Memo of Cross Objection. In reply to the SCN, the assessee had raised a contention of bar of limitation.

Without going into that issue, the Commissioner dropped the demand on the merits of the claim itself. When the revenue came up in appeal , the assessee preferred a Memo of Cross Objection contending that the claim put forth in the SCN is barred by limitation. Since we find that on merits, the Revenue has no case to succeed, issue on limitation need not be gone into. Consequently we are not examining the issue as to whether the action taken by the department is barred by limitation or not.

5. In view of what has been state above, we dismss both appeal and cross objections.