TMI Blog2000 (9) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 2. Brief facts of the case are that M/s. Bajaj Auto Ltd., Waluj, Aurangabad (hereinafter referred to as the respondents) was served with a Show Cause Notice demanding Central Excise duty of Rs. 16,65,042/- on the ground that the respondents have recovered the amount of Rs. 66,60,167/- extra in the name of sale/supply of advertisement material during the period from 1993-94 to 1995-96 and that the extra amount is nothing but part of Assessable Value of motor vehicle. While adjudicating the matter the Adjudicating Authority dropped the Show Cause Notice accepting the respondents contention that they have procured this material from market and on demand supplied to dealers and this being part of trading activities this amount cannot be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itio. In this context he relied upon the Supreme Court decision in the case of M.M. Rubber Co. - 1991 (55) E.L.T. 289 (S.C.). He invited my attention particularly to para 6 wherein it has been observed by the Supreme Court that the direction to file an appeal is to the very adjudicating authority who would otherwise be bound by his own order and not expected to be aggrieved by the same, and that when an appeal is filed on such directions, the appellants will be the adjudicating authority himself and not the authority who gave the directions. Shri Atar thereafter submitted that the same view has been expressed in the case of Lakshmi Co. - 1999 (34) RLT 558 (T) by the Tribunal wherein the Tribunal has held that in a case where adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of this advertisement literature. Shri Atar thereafter also relied upon the Tribunal decision in the case of Escorts Ltd. - 1998 (98) E.L.T. 206 (Tribunal) = 1998 (74) ECR 819 (T) wherein it has been held that publicity material such as posters, leaflets etc. though purchased by the dealers from the appellants could as well have been purchased elsewhere and, therefore, the cost of these materials is not an additional consideration flowing from the dealers to the appellants and so cannot be included in the assessable value of the motor cycles. Shri Atar also relied upon the following Tribunal decisions :- (1) Kinetic Engineering Ltd. - 1999 (107) E.L.T. 150 (Tribunal) = 1998 (77) ECR 374 (2) Hero Honda Motors Ltd. - 1998 (100) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. While coming to this conclusion the Hon ble Supreme Court at paragraph 6 explained the significance of sub-clauses (1) (2) of Section 35E and observed that the direction to file an appeal under these two sub-clauses is to the very adjudicating authority and that when an appeal is filed on such direction, the appellant will be the adjudicating authority himself and not the authority who gave the direction. This observation in the form of obiter dictum only clarifies the position that the authority who gave the direction is not the appellant and it is the adjudicating authority himself who is the appellant. From this observation of the Apex Court made in a different context, it would be unfair to jump to the conclusion that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner s appeal is basically relying upon the Supreme Court judgment in the case of Bombay Tyre International in terms of which expenses incurred for increase of sales of the product, even after clearance of the product from the factory gate, would form part of assessable value. On the other hand, the adjudicating authority while deciding the matter has relied upon the Supreme Court Judgment in the case of Philips (I) Ltd. [1997 (91) E.L.T. 540] and the Tribunal decision in the case of Hero Honda Motors [1998 (100) E.L.T. 468] and Somany Pilkingan s Ltd. [1998 (99) E.L.T. 99], apart from certain other decisions in the case of Escorts Ltd., Kinetic Engineering etc. After going through the facts of the case I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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