TMI Blog1999 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... d. are manufacturers of aerated waters/beverages duly liable to Central Excise duty. The manufacturing activity basically consists of bottling. They obtained the concentrate for aerated water from M/s. Britco Food Company Ltd. which is a wholly owned subsidiary for Coca Cola Corporation. The bottled drink is Coke. They sell the bottled beverage to wholesale dealers. Central Excise duty was paid based on the wholesale price of the beverage to dealers. The Central Excise authorities observed that the respondents were collecting from some wholesale dealers rent on containers (ROC) @ Rs. 7.50 per crate. Similarly, they received over Rs. 26 Lakhs from Britco under credit note as price support incentive. Credit Note No. 240, dated 18-12-1995 of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e beverage to the wholesale dealers was on principal to principal basis and the wholesale price was the sole consideration. Therefore, the sale price constituted the normal price of the goods at which goods have to be assessed under Section 4(1)(a) of the Central Excise Rules. It was maintained that Rule 5 of the Central Excise Rules had no relevance in the instant case. The Central Excise Rule comes into play only where the buyer is a related person and the price is not the sole consideration for the sale. Further, Rule 5 specifically stipulated that "the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee" only is to be added to the price where the price is not the sole c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value and minimising excise duty incident. The appeal contends that the pricing and marketing pattern were changed by the appellants at the instance of Britco only to evade duty. The payment was made by M/s. Britco to the respondent only to compensate them for the low price at which the beverages were sold at the dictate of Britco. Therefore, the payment by Britco should be considered to be an additional consideration for the goods and in the absence of such payment, the respondent would have increased the price of the product. With particular regard to Rule 5 of Central Excise (Valuation) Rules, the appeal has submitted that the adjudicator has given a simple reading to Rule 5 with regard to the provision that additional conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were sold to wholesale dealers. The appellants have also explained that the valuation provisions in the Central Excise law on this score are very clear. If there is a normal price at which goods are sold to unrelated buyers and the price i.e. the sole consideration, the same has to be the basis for assessment under Section 4(1)(a) of the Central Excise Act. In the instant case, sale price was the sole consideration for the sale of the goods. Therefore, no addition was required to be made to this price. In any event, there was no warrant for making an addition in consideration of the amounts received from Britco because Rule 5 clearly stipulates that only consideration flowing from the buyer is to be added to the price. 7.On both the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation flowing directly or indirectly from the buyer to the assessee." It is clear from the words used that "any additional consideration flowing directly or indirectly from the buyer to the assessee (emphasis supplied) alone is to be added where excisable goods are sold in the circumstances specified in clause (a) of sub-section 1 of Section 4 of Central Excise Act." The Commissioner was right in following this clear provision of law. The Revenue's submissions that "the adjudicator has given a simple reading to Rule 5 which, inter alia, requires that additional consideration should flow directly or indirectly from the buyer to the assessee" and that "he has never tried to go with the spirit of issuing Credit Note by Britco to the party", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicated under the impugned order. Therefore, question of time bar does not arise. Further, the appellant was making additional collection in the name of the transport charges under separate invoices. The fact of such collections was never disclosed to the Excise authorities. It is settled law that all costs incurred upto delivery at the factory gate are includable in the assessable value of goods. In the instant case, it is an admitted position that the realisation over Rs. 18 lakhs was for movement of the goods within the factory premises and up to delivery at the factory gate. The appellant's submissions regarding return of the amounts so collected is also not relevant to the issue as assessable value is the normal price at the time and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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