TMI Blog2011 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... s premises would be includible in the assessable value Regarding inclusion of rental for canisters - Tribunal in favour of the appellant in their own case vide judgment reported in (2007 -TMI - 31573 - CESTAT NEW DELHI) - Decided in favor of the assessee by way of direction to re-quantification of duty demands - E/563/2005 , 677-679 & 762/2006 - 884-888/2011-EX(PB) - Dated:- 11-10-2011 - Ms. Jyoti Balasundaram, Shri Rakesh Kumar, JJ. REPRESENTED BY : Ms. Shirin Khajuria, Advocate, for the Appellant. Shri N. Pathak, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The appellant are manufacturers of soft drink syrup called post mix syrup (POM) under the brand name Coca Cola, Fanta, Thumps Up, Limca and Sprite, which is sold in 18 litre s canisters, which on being fitted with the dispensing machine at the retailer s premises, generate soft drinks. The period of dispute in this case is from March 1999 to December 2003. During this period, the appellant were selling the POM in 18 litres canisters to their distributors who, in turn, were selling the same to retailers. The retail price of the goods had been fixed by the appellant. The appellant were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were being sold at the factory gate, not at the distributor s premises. 2. Heard both the sides. 2.1 Ms. Shirin Khajuria, Advocate, the learned Counsel for the appellant, pleaded that all the sales of the appellant during the period of dispute were at the factory gate, that the transactions between the appellant and their distributors were on principal to principal basis, that the department s contention that there are no sales at the factory gate and the sales were taking place from the distributor s premises and the distributors are actually the consignment agents, is absolutely wrong, that in this regard the appellant intend to introduce additional evidence in form of invoices issued by them which clearly mention that the goods were delivered at the factory gate, and that the amount indicated in the invoices represents the price actually charged and there is no flow of additional consideration directly or indirectly from the buyers except for the rent and service charge of the empty bottles and freight, which have been separately charged, that in respect of sales at the distributor s end, it is the distributors who have issued the invoices and not the appellant, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and, therefore, in the show cause notice dated 8-10-2002, longer limitation period under proviso to Section 11A (1) has been correctly invoked, that as regards the miscellaneous petitions filed by the appellant for introduction of the additional evidence, the invoices and the affidavits filed by the buyers had been considered by the Tribunal in the final order dated 15-6-2007 in their own case and it was held that these invoices and buyer s affidavits do not prove that the appellant s transactions with their distributors were on principal to principal basis and in view of this the same invoices etc. cannot be admitted as additional evidence and considered afresh, that when the issue as to whether the distributor s commission and freight charges is includible in the assessable value or not, has already been decided by the Tribunal against the appellant in their own case for the period from January 2004 to September 2004, and that judgment dated 15-6-2007 of the Tribunal has not been stayed or reversed by any higher Court, in these proceedings, the appellant cannot take up the same issue again and that in view of this, there is no infirmity in the impugned orders. 2.3 Ms. Shiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir distributors which mention that the delivery of the goods was at the factory gate and their responsibility ceased as soon as the goods were handed over to the carriers, (ii) the invoices issued by their distributors and (iii) affidavit filed by the Accounting Manager of the appellant, wherein it has been stated that all the sales invoices issued by the appellant clearly mention the terms and conditions of the sales, that their responsibility ceases as soon as the goods are handed over to the carriers and that there were no separate agreements with the distributors of the post mix concentrate and the terms and conditions of the sales to the distributors were mentioned in the invoices themselves. In our view since from para 7.9 of the Tribunal s order dated 15-6-2007 [2008 (230) E.L.T. 613 (Tri. - Del.)], it is clear that the invoices issued by the appellant and the fact that there were no written agreements of the appellant with their distributors had been considered by the Tribunal, and the Tribunal after going through the evidence on record had decided the question regarding inclusion of distributor s commission and the freight expenses against the appellant by holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng extended period under proviso to Section 11A (1) and since prior to this another show cause notice dated 30th April 2002 for the period from April 2001 to December 2001 on the basis of same facts had been issued, in view of judgment of Hon ble Supreme Court in the case of Nizam Sugar Factory v. C.C.E., A.P. (supra), in respect of the show cause notice dated 8-10-2002, only the normal limitation period would be available to the department for recovery of short paid duty. 6. As regards the issue regarding inclusion of rental for canisters, this issue already stands decided by the Tribunal in favour of the appellant in their own case vide judgment reported in 2008 (230) E.L.T. 613. Following this judgment, we hold that the rentals for canister would not be includible in the assessable value. 7. In view of the above discussion, while we hold that distributor s commission and freight charges would be includible in the assessable value and the rentals for canisters would not be includible in the assessable value, the matter has to be remanded for requantification of duty demands on the above basis. So far as appeal No. E/563/2005 for the period from March 1999 to March 2001 is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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