TMI Blog1999 (2) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions and cleared the goods on payment of duty. 14 show cause notices were issued covering the period 14-9-1990 to 31-10-1994. In these identically worded show cause notices, it was alleged that their main customer M/s. Darshak Ltd. was spending certain amounts on account of publicity and sales promotion expenses with the aim of increasing the sale of such products. It was alleged that the assessees themselves were not incurring any expenditure for advertisement and sales promotion. It was alleged that such charges incurred were includible in the assessable value. In these 14 show cause notices covering the cited period demands were made on addition being made of such charges to the wholesale prices. The Asstt. Commissioner co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have carefully considered the submissions and have also seen the text of the judgment in the case of Philips India Ltd. 6. In the Philips India judgment the Supreme Court have cited with approval the judgment of the Madras High Court in the case of Standard Electronics Appliances - 1986 (23) E.L.T. 302 as also of the Mumbai High Court in the case of UOI v. Mahindra Mahindra - 1989 (43) E.L.T. 611. The Madras High Court has held that where the wholesaler had incurred the cost of advertisements, apart from the demand for the product of the manufacturer being increased, the wholesaler also stood to gain and therefore in such case, the wholesaler could not be said to be spending the amount for the manufacturer. The Bombay High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal has given the background leading to the addibility in the price of the expenditure being undertaken on advertisement by M/s. Darshak. The Tribunal has compared the situation with that occurring in the Supreme Court judgment in the case of Metal Box India Ltd. 1995 (75) E.L.T. 449. It is clear from the submission by Shri Joshi that the facts narrated in the said para hold good in the cases before us also. 9. In the case of Philips India and in the cases of judgment following that judgment, there was an agreement between the two parties whereby certain responsibility have been taken by the dealers for advancing the sale of the products of the manufacturer. In the judgment of Philips India and in the case cited by the Court wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The phrase on which Shri Joshi placed the argument reads as follows :- M/s. Alembic Glass has not spent any expenses towards such advertisement and sale promotion during the period ......, and have carefully manipulated their sales pattern in such a way as to exclude the advertisement and sales promotion expenses from the assessable value . As against this, the exclusion clause prescribed in a cited circular of the Board reads as follows : All cases involving fraud pollution, any wilful mis-statement, suppression of facts or contravention of Central Excise Act/Rules made thereunder with an intent to evade payment of duty and/or where extended period has been invoked in the show cause notice ... It is clear that the exclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings before the Commissioner and find that his claim was in fact made before the Commissioner and that the Commissioner has not given his finding on this aspect. Therefore while holding that the various amounts expended by M/s. Darshak Ltd. on advertising the products of the appellant are includible when calculating the assessable value, would make the direction for recalculating the amount of duty. 12. We therefore uphold the orders of the Commissioner, but remit the proceedings back to the Jurisdictional Asstt. Commissioner only for recalculation of the amount of duty to be confirmed. He will examine the price lists filed by the assessees during the periods covered by show cause notices, determine the effective rate as payable by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at may seem to follow logically from it. When my Brother said in his judgment that where not following the price list goes decided by the Supreme Court, it was because in that case, as well as other judgment following that case decided by the Tribunal, there is a specific feature relevant in this case that there was a written agreement between the manufacturer and the distributors entered into by of principal to principal. In this case, it is absent. In fact, the ld. Counsel stated that there was no agreement at all. I therefore, agree with the order proposed. 14. One more point need to be emphasised here that no doubt in the assessees case, the assessee had taken up the matter on appeal to Supreme Court and the Supreme Court had order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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