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TMI Blog2011 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of audit by the audit authority, it was observed that the appellants had incurred certain expenses towards publicity and advertisement but the same were not included in the assessable value for the purpose of payment of central excise duty. On being asked about the details as regards such expenditure, the same were supplied by the appellants to the Department under their letters dated 17-9-03 and 6-1-04. Consequently, it was revealed that for the period from December 2002 to December, 2003, the appellants had incurred expenditure amounting to Rs. 16,11,063/- on publicity and Rs. 1,89,831/- on advertisements. Accordingly, a show cause notice dated 7-1-2004 was issued to the appellants proposing recovery of the duty to the tune of Rs. 2,88,143/-. The appellants contested the claim by filing their reply dated 12-1-2004. The adjudicating authority while accepting the contention sought to be raised by the appellants dropped the proceedings. Being aggrieved, the Department carried the matter in appeal before the Commissioner (Appeals) and thus the impugned order came to be passed. 3. Learned Advocate for the appellants while assailing the impugned order submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include all the elements which are integrally connected with the sale of excisable goods and therefore, whatever expenses which the manufacturer incurs in relation to the advertisement or publicity will have to be included in the assessable value of the product. Further, drawing our attention to the definition of the term 'transaction value' he submitted that the expression "to make provision for" is preceded by another expression " any amount charged for or" which clearly disclose that the transaction value does not merely mean the price actually paid or payable for the goods but also include any other expenditure in relation to the advertisement for the product. 5. Taking into account the rival contentions, the only point which needs to be considered is whether the expenditure incurred in relation to the publicity of the product cleared by the manufacturer would form part of the assessable value bearing in mind the meaning and scope of the term 'transaction value' under the said Act. 6. The term 'transaction value' as defined in Section 4(3)(d) of the said Act reads thus - "Transaction value" means the price actually paid or payable for the goods, when sold, and incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to". Apparently, it is a definition of extensive nature and at the same time it is restrictive and exhaustive in relation to the items to be excluded therefrom. It discloses to be of vary wide and extensive in nature and it is evident from the use of the expressions like "includes in addition to" and "including but not limited to". At the same time, it precisely pinpoints the items which are excluded therefrom, with the prefix as "but does not include". Exclusions being defined no presumption for further exclusions is permissible since measure of levy is revenue yield base. There appears no ambiguity to say that the amendment made w.e.f. 1-7-2002 has to cover all factors/elements integrally connected with sale of excisable goods to contribute for determination of assessable value thereof. 19. If one peruses the definition clause of the expression "transaction value", it refers to "any amount that buyer is liable to pay". Only restriction that has been imposed is that such payment should be "by reason of or in connection with the sale" on such goods. Thus reason of sale and inter connection thereto are essential elements to contribute for assessable value. The definition fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of determining the duty liability under the said Act. It is totally different from the liability relating to sale tax. This is apparent from the scheme of the Act as well as the intent and spirit of the Section 4 itself." Considering the definition of the transaction value as is found in Section 4(3)(d) of the said Act and observations made by the Larger Bench, it is abundantly clear that the expression "to make provision for" which is in relation to the advertising or publicity, marketing and selling organization expenses, is not necessarily related to the amount which is recoverable from the buyer but also include all the expenditure in relation to the said subjects. The contention of the appellants, however, is that such expenditure is necessarily to be by the buyers in order to make the said amount to be part of the transaction value. It is submitted by the Department that once it is clarified that the definition of the term 'transaction value' is not restrictive in nature but is exhaustive and only in relation to exclusion, it is restrictive. 8. It is difficult to accept the contention sought to be canvassed on behalf of the appellants. The expression "to make provis ..... 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