9911796707
TMI Blog2011 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 11AC of the Central Excise Act. 2. Briefly stated the facts of the case are that Appellant entered into agreement with Coca-Cola Company to use trade mark/brand name of Coca-Cola on the goods manufactured and for manufacture of its final product a non-alcoholic beverage base is sold by Coca-Cola to Appellant at agreed prices. The beverage base supplied by the Coca-Cola is duty-paid. Appellants were paying duty during the period in dispute under Section 4A of Central Excise Act at M.R.P. basis. There is no dispute regarding the assessment under Section 4A of the Central Excise Act. A Show Cause Notice was issued on 30-4-2008 on the ground that during the period 2003-2004 to 2005-2006 the Appellant suppressed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question were liable for duty under Section 4 of the Central Excise Act a Show Cause Notice was issued in the year 1999 demanding duty by including the incentive and discount received from the supplier of raw material i.e. Coca-Cola and the demand was dropped by the Commissioner of Central Excise vide order dated 24-4-2000. While dropping the demand the Commissioner of Central Excise held that amount in question has already been included in the sale price of the beverage base on which duty has been paid by the supplier of raw material and payments were made by the present Appellant to the supplier of raw material. In such circumstances the payment made to the Appellant by the supplier of raw material would not be treated as additional c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erages and syrups and paying duty as per the provisions of Section 4A of Central Excise Act. For ready reference provision of Section 4A of Central Excise Act is reproduced below :- 4A. Valuation of excisable goods with reference to retail sale price. - (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (50 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale : Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. 8. There is no dispute that goods are assessable to duty as per the provisions of Section 4A Central Excise Act. As per the provisions of Section 4A of the Act the retail sale price declared on the goods less su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m customers over and above the printed sale price on the goods hence the inclusion of cost of incentives received from the supplier of raw material i.e. from Coca-Cola to the assessable value is not sustainable particularly when the goods are assessable under Section 4 of the Act. 10. In respect of the argument that demand is time barred we find that Appellants are filing necessary returns regarding payment of duty on the basis of M.R.P, and when the M.R.P. was reduced the same was reflected in the monthly returns hence the allegation of suppression with intent to evade payment of duty is also not sustainable. In view of the above discussion the impugned order is set aside and Appeal is allowed. (Operative part of the order was prono ..... X X X X Extracts X X X X X X X X Extracts X X X X
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