TMI Blog1990 (11) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... rent wholesale dealers namely, Vidharbha Bottlers, Nagpur, Mukesh Campa Services, Nagpur, Amba Traders, Gondia, Bhole Drinks, Chindwara, Chandiram Sadhuram, Betul, and Shantiganga Soft Drinks, Bilaspur. Since the wholesale dealers invariably delayed the return of empty bottles and wooden crates to the appellants factory the appellants recovered from the wholesale dealers an amount of Rs. 5/- per crate as container hire charges besides the ex-factory price charged for the sale of aerated waters. There is also an understanding between the appellants and the wholesale dealers to the effect that the dealers have to lift a particular number of crates in a year and if they fail to do so they would be liable to pay at the rate of Rs. 3/- per crat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., Nagpur. 5. A common show cause notice was issued proposing to impose the penalty, confiscate the goods seized, demand duty amounting to Rs. 5,63,315.36 under Rule 92. The proposal is based on the following grounds: (i) Adding of Rs. 51- per crate recovered by the appellants as container hire charges to the value of clearances, addition of the compensation amount for short lifting the agreed quota, to the assessable value. (ii) Addition of 80 paise crate as transportation for return of empty bottles and crates from the premises of dealers to the premises of the appellants. (iii) To deny the benefit of the Notification 175/86. On receipt of the reply the Collector passed the impugned order under which he confiscated the goods se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any financial consideration. This is further proved by the fact that M/s. Spring Fresh Drinks (P) Ltd., Nagpur has suppressed the production of aerated waters and attempted to divert the same in the name of Vidharbha Beverages, Nagpur. He also observed that on earlier occasion the appellants tried to divert the production of 157 crates of Campa Cola in the name of M/s. Vidharbha Beverages. Therefore, according to him there is financial interest in both the units and the relations of both the companies are not based on commercial terms and they are running the business as a family business. He also held that the Directors and the appellant company and that of Vidharbha Beverages are closely related. He further observed that there is no prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Vidarbha Beverages. Hence he appears to be Controlling Authority. (2) both the units are using common brands i.e. Cola, Orange, Lemon and Soda. (3) the services of the staff namely Shri Rambhau Hargude are being utilised for the maintenance of the records of both units though he is being paid by M/s. Vidarbha Beverages. (4) both the units are having same sale pattern and major quantity being sold to M/s. Vidarbha Bottlers, Nagpur. (5) both the units are situated adjacent and are having common security guards. (6) one unit has shown the production of particular brand during the particular period whereas, the other unit has not shown the production of that brand during that period. (7) the noticee was found utilising printed st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be evidence to show that the factory of Vidarbha Beverages is used for the manufacture of the goods by the appellants which is not available in the instant case. The real test is whether the goods are manufactured by the appellants in M/s. Vidarbha Beverages with the raw material belonging to them. There is no direct evidence to this effect. In this context we may refer to the observations of this Tribunal in Shree Packaging Corporation v. CCE [1987 (32) E.L.T. page 94]. As earlier mentioned, the proprietors of two firms were closely connected and the two firms were functioning in practically adjacent premises. If they are able to establish that even materials commonly stand could be properly identified and separated with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words the appellants are collecting from the buyers i.e. customers the notional cost for not lifting the contracted quantity of the aerated water. It is actually compensation for non-performance of the entire contract. This is an income or profit for the manufacturer, but not the price for the manufacture of aerated water. It is not the case of the department that the price of the aerated water is depressed by making a provision for compensation for short lifting the contracted quantity. In the absence of such evidence the profit earned or income cannot be added to the assessable value. In this context we may refer to the observations of the Supreme Court in CCE v. Indian Oxygen [1988 (36) E.L.T. page 730 (SC)] which are to the following e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
