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2005 (7) TMI 102 - SC - Central ExciseWhether the department has been able to show that the intrinsic price of aerated water was more than the price actually charged to the buyer? ? Held that:- As found by the adjudicating authority as well as by the Tribunal, the prices had to be reduced by the assessee on account of competition in the market. Further, the prices stood reduced on account of concession given by M/s. Britco, supplier of concentrates (raw material), to the assessee. There is no evidence of flow back of any additional consideration from the buyers of aerated water (beverage) to the assessee. On account of cut throat competition from Pepsi, M/s. Britco had to provide incentive to the assessee. But for the incentive from the supplier of concentrates (raw material), the assessee was not in a position to face acute competition from Pepsi. On the other hand, the evidence on record indicates that price uniformity was maintained. No favour for extra commercial reasons were shown to any of the buyers of aerated water. There is no evidence of any concession to any of the buyers. There is no evidence of existence of any favoured buyers. In the circumstances, Rule 5 is not applicable. So far as ROC is concerned, the Commissioner found that the rent equivalent to interest was collected by the assessee on account of delay in returning of empty crates/bottles. The purpose of charging interest was to get back empty bottles/crates immediately as otherwise the assessee was required to make additional investment towards stock inventory on crates/empty bottles. Further, the said levy did not form the price of the aerated water and, therefore, ROC was not includible in the assessable value. In the circumstances, the Commissioner was right in applying the ratio of the judgment of this Court in the case of Collector of Central Excise v. Indian Oxygen (1988 (8) TMI 98 - SUPREME COURT OF INDIA). Thus there is no merit in these appeals preferred by the department. Accordingly, all the appeals are dismissed with no order as to costs.
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