TMI Blog2002 (2) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... gether and are being disposed of by this common order. 2. The basic issue adjudicated in the impugned order is the valuation of Sleepwell Flexi-Puff brand goods manufactured by M/s. Sheela Foam group of Companies and sold to M/s. S.F. Enterprises. The impugned order concluded that Sleepwell Flexi-Puff brand goods were manufactured exclusively for M/s. S.F. Enterprises and M/s. S.F. Enterprises Pvt. Ltd. being a related person of M/s. Sheela Group of Companies, the goods were required to pay duty at the price at which they were sold by the related person (M/s. S.F. Enterprises Pvt. Ltd.) in terms of Proviso (iii) to Section 4(i)(a) of the Central Excise Act, 1944. Since the manufacturers had paid duty in respect of such goods at their s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in respect of all the consignments at the price at which sales were made to the buyers by the manufacturing units and all the sales were assessed to Central Excise duty treating the manufacturers ex-factory sale price as the normal value under Section 4(1)(a) of the Central Excise Act. After detailed investigations, allegations were raised that the Sleepwell Flex-Puff branded goods sold to M/s. S.F. Enterprises are required to be assessed at the sale price of the marketing company and not at the sale prices of the manufacturing units. The impugned order upheld this claim, pressing into service Proviso (iii) to Section 4(1)(a) as already mentioned. 3. The appellants contest reopening of assessments and duty demand mainly on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contention that when the same goods are sold to different buyers after affixing the buyers brand names, each of those prices would be acceptable as assessable value. Reliance has been placed in support of this submission on the decision of the Supreme Court in the case of M/s. R.O. Industries v. Union of India [2000 (120) E.L.T. 31] where the Apex Court held that when goods are sold to wholesale dealers under different brand names belonging to the wholesale dealers, the assessment would be at the wholesale prices at which the goods were sold to the brand name owners and not the wholesale price at which the brand name owners sold the goods to others. The appellants have pointed out that the impugned order has been passed on the erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified goods and that the marketing of the specified goods under the trade name made no difference as they still remain the same article irrespective of the name under which they may be sold. See also Bata India Ltd. v. Assistant Collector of Central Excise [1978 (2) E.L.T. 211]; Bapalal Co. v. Government of India [1981 (8) E.L.T. 587]; Carona Sahu Co. Ltd. v. Superintendent of Central Excise Ors. [1981 (8) E.L.T. 730]; Union of India v. Cibatul Limited [1985 (22) E.L.T. 302] and the Joint Secretary, Government of India v. Food Specialities Ltd. [1985 (22) E.L.T. 324] . The learned Sr. Counsel for the appellants pointed out that the above observations are in line with several previous judgments (quoted in the Calcutta High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of J.K. Cotton Mills v. CCE [1997 (91) E.L.T. 534] in support of this proposition. 5. It is clear from the records of the case that appellants manufacture and sell taped sheets which are used for making mattresses, cushions, pillows etc. They affix the brand names Sleepwell/Feather Foam , which are their own brand names, and sell bulk of the goods to wholesale dealers under these brand names. When the manufacture is according to the orders of M/s. S.F. Enterprises (P) Ltd. the brand name of Sleepwell Flexi-Puff is affixed on the taped sheets. The labels indicating the brand name and primary packing and branding material including industrial tapes, guarantee/quality assurance/customer registration cards are supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) was correct and no short levy or short payment of duty had taken place. The appellant assessee s case would seem to be within the rule contained in the Apex Court s judgment in the case of R.O. Industries. 6. The judgments of the Apex Court in Bombay Tyre International and J.K. Cotton Spg. and Wvg. Mills Company Limited do not seem to be applicable to the facts of the present case. Paras 42 and 43 of the judgment in Bombay Tyre relate to the validity of Proviso (iii) to Section 4(1)(a) of the Central Excise Act. In the present case, bulk of the goods are being sold to independent wholesale buyers. Proviso (iii) has no application in such cases and goods are required to be assessed under Section 4(1)(a) at their normal wholesale price ..... X X X X Extracts X X X X X X X X Extracts X X X X
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