TMI Blog2004 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. Pepsi Foods Ltd.; that they get concentrate from M/s. Pepsi Foods Ltd. for the manufacture of aerated waters in bottles and in Bag-in-Box; that Bag-in-Boxes are sold on ex-factory basis to M/s. Hyderabad Beverages for further distribution to the vendors in the State of Andhra Pradesh whereas outside Andhra Pradesh the goods are sold to M/s. Nagpur Frozen Foods P. Ltd., Nagpur; that the demand of duty has been confirmed and penalty has been imposed vide Order-in-Original No. 9/2001 on the ground that M/s. Hyderabad Beverages were preparing and submitting monthly PMX reports showing the particulars of primary sales, secondary sales and other services particulars and on comparison of those reports, the Department has alleged that the quantity purchased as shown in the reports was higher than the quantity received as per Invoices by M/s. Hyderabad Beverages and has alleged clandestine clearance of 5241 bags-in-box without payment of duty for the period 1994-95 to July, 1996; that the second ground is that the sales made to Hyderabad Beverages was not in the ordinary course of trade and the price was not the sole consideration inasmuch as Hyderabad Beverages were undertaking a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent evidence on record to show that they had cleared 5241 bags without payment of duty. He relied upon the judgment in the case of Oudh Sugar Mills Ltd. v. U.O.I., 1978 (2) E.L.T. (J 172) wherein the Supreme Court has held that average production cannot be made basis for issue of show cause notice and the findings based on such show cause notice are without any tangible evidence and are based on inferences involving unwarranted assumptions and are vitiated by an error of law. He relied upon the decision in the case of CCE, Meerut v. Moon Beverages Ltd., 2002 (150) E.L.T. 976 (T) wherein it has been held by the Tribunal that corroborative evidence such as evidence of other inputs required for manufacture of aerated water, namely, sugar, carbon dioxide being purchased and utilized in the manufacture of final product during the period in disputes is required and as there is no such corroborative evidence, the charge of clandestine removal is not sustainable. Reliance has also been placed on the following decisions :- (i) Parle Beverages Ltd. v. CCE, Mumbai-1 - 1999 (114) E.L.T. 872 (T) (ii) CCE, Hyderabad v. Annapurna Industries Ltd. - 2003 (153) E.L.T. 586 (T) 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there is no mutuality of interest directly or indirectly. He relied upon the decision in the case of Union of India v. Atic Industries Ltd., 1984 (17) E.L.T. 323 (S.C.) and Indian Oxygen Ltd. v. CCE, 1988 (36) E.L.T. 723 (S.C.). The learned Advocate has also submitted that even if the prices of Hyderabad Beverages are to be taken for arriving at the assessable value, abatement on account of various expenses which form part of the price at which they sell the goods to their customers should be granted; that these expenses include rental charges of PMX machines, cost of cups, carbon dioxide advertisement charges etc. He relied upon the decision in the case of Pepsico India Holdings (P) Ltd. v. CCE, Mumbai, 2004 (163) E.L.T. 478 (T) wherein the Tribunal has held that lease charges on dispensing machine is not includible in the assessable value of syrup. Reliance has also been placed on the decision in Dhillon Kool Drinks Beverages v. CCE, Jalandhar, Final Order No. 794 to 801/04-A dated 26-7-2004 [2005 (182) E.L.T. 57 (Tribunal)]. 4.2The learned Advocate mentioned that in Appeal No. E/3092/02-A, the only issue is that the duty has been confirmed on the prices at which M/s. Hyder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to spend; that thus clearly M/s. Hyderbad Beverages were a total dummy of the Appellants and is an extension of the Appellant. 6.We have considered the submissions of both the sides. The charge of clandestine removal of bags-in-boxes by the Appellants has not been established by Revenue which has mainly relied upon the difference in figures of sale of the impugned product reflected in PMX Reports. It is not disputed by Revenue that these reports are prepared by M/s. Hyderabad Beverages and not by the Appellants. No evidence has been brought on record to show any excess production of the impugned product by the Appellants by way of procuring necessary raw materials. In a similar situation in the case of Moon Beverages wherein the charges of clandestine removal was made on the basis of computerized sheets of sales figures maintained by M/s. Parle Exports Ltd. whom the figures were sent by the assessee, the Tribunal has held that the charge of clandestine removal cannot be established on the basis of one single factor.....Other corroborative evidence such as evidence of other inputs required for manufacture of aerated waters namely sugar, carbon dioxide being purchased and utiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the impugned Order-in-Original No. 9/2001, dated 4-4-2002, the Commissioner has given a specific finding, that the facts of the case do indicate that H.B. and CBC being two firms cannot be relative as defined in the Companies Act, 1956.... Thus the allegation in the show cause notice that CBC and HB were related persons in terms of Section 4(4)(c) of the Central Excise Act, 1944 is not proved. : There is no appeal filed by Revenue challenging the said finding recorded by the Commissioner. Thus the finding of the Commissioner in the second impugned Order-in-Original No. 35/2002, dated 6-9-2002 to the effect hat HB is related to CBC within the meaning of related person as per Section 4 of Central Excise Act, 1944 is contrary to the unchallenged findings in the first Order-in-Original dated 4-4-2002. The Revenue cannot hold in one Order that Hyderabad Beverages is not related person and then held in second Order that they are related person of the Appellants. No new evidence or material has also been brought on record to arrive at a different finding. We observe that the Commissioner, in the first Order, has also given a specific finding, after noting that there is no repo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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