TMI Blog2006 (3) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... oca-Cola Beverages Pvt. Ltd. is a bottler of well-known soft drinks (Coca Cola, Limca etc.) at Varanasi. Excise duty demand under the impugned order is for the period June 1999 to May 2000. During this period, the soft drinks in question were required to be valued for the purpose of assessing them to excise duty in terms of Section 4A of the Central Excise Act. The provision of that Section is that assessable value shall be the retail sale price declared of such goods less such amount of abatement, if any, from such retail price as the Central Government may allow by notification in the Official Gazette . At. the time of clearance of the goods covered in the present proceeding the appellant had valued the soft drinks based on declared price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the measure fixed under Section 4A is that retail sale price declared on such goods less such amount of abatement shall be the value. It is the appellant's submission that payment of duty, in all circumstances, has to be in terms of this measure and that the actual sale price was wholly irrelevant to the assessment. Thus, it is being contended that the revenue authorities were legally in error in assuming that actual sale price could be substituted for the declared price. The second contention is that it is a gross error, and contrary to the judicially recognized practice in the soft drink industries, to treat rental charges of crates and bottles as a flow-back. 6. In addition to the above main pillars of defence, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items is a ancillary and allied activity, separate from the manufacture and sale of soft drinks. 9. Learned counsel has further submitted that the finding on flow-back is entirely erroneous and contrary to evidence inasmuch as, firstly rental charges of bottle are entirely for different consideration than sale of beverages and secondly, as explained through the costing data to the lower authorities, the retail price declared by the appellant-manufacturer took in all costs and profits including that of the retailer and there was sufficient margin within the declared MRP to provide for all costs and legitimate profits of every link in the distribution chain. 10. As regards the evidence about the higher price and the appellant s involveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the lower authorities that actual sale price can substitute for declared price for the purpose of valuation of excisable goods is clearly contrary to the rule laid down in that judgment. The factual finding about flow-back through rent for bottle is also contrary to the judicially recognized factual position. It is common practice in regard to sale of liquid and gases in durable containers that rental charges are collected for the containers separately and such rental charges do not form part of the value of the goods sold in them. This position remains recognized in the decision of this Tribunal in the case of Herbertons Limited (supra). Therefore, the finding that rental charges for the bottles was a flow-back from trade to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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