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2016 (8) TMI 119 - CESTAT CHANDIGARH

2016 (8) TMI 119 - CESTAT CHANDIGARH - TMI - Valuation - inclusion of advertisement cost incurred by the dealers and promotional materials sold to the dealers - Held that:- advertisement cost incurred by the dealers and promotional materials sold to the dealers are not includible in the assessable value. - Decided in favor of assessee. - E/2049/2008 - Final Order No. 60143/2016 - Dated:- 25-5-2016 - Mr. Ashok Jindal, Member (Judicial) and Mr. Raju, Member (Technical) Ms. Swati Gupta, Advocate fo .....

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ket the goods through their network of dealers, (b) The appellant is carrying out main advertisement at the national level at their own expenses. The amount of expenses so incurred is included in the selling price of the finished goods and excise duty is paid on such price. (c) The appellant has written agreements with their dealers which envisage that the dealers shall at all times during the currency of the agreement make efforts to promote the product and its reputation within the allotted te .....

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for JASP. (f) The department held that the incurring of expenses by the dealers under JASP is arising out of the dealer's agreement and the JASP policy; the dealer incurs the expenses under the terms of the agreement; these activities are carried out by the buyers only on behalf of the manufacturer and the expenses as incurred on behalf of the manufacturer. Therefore, these expenses were treated as consideration for sale and accordingly differential duty and penalties imposed. 3.2 The appell .....

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ieved from the said impugned order the appellant is before us. 2. The Ld. Counsel appearing on behalf of the appellant submits that in their own case for the earlier period on the identical issue this tribunal has held that advertisement cost incurred by the dealers and promotional materials sold to the dealers are not includible in the assessable value of the appellant. The said order has been reported in 2008 (232) ELT 566 (Tri, Delhi), therefore, the issue has already been settled by this tri .....

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ed may fall under Rule 3 broad categories. First category is the advertisement done by the manufacturer on their own and at their own expenses. Such advertisements make the product visible and known to the prospective buyers. Such advertisement not only benefits the manufacturer but also the dealers. As such advertisements make the job of selling relatively easier. There are also advertisements which may be done exclusively by the dealer in their area out of margins received by them. Even such a .....

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ation/additional consideration for sale and added to the assessable value. When the contract envisages such incurring of expenses by the dealer and failure to incur such expenses give a right to the manufacturer to get the advertisement done on their own and recover the expenses from the dealer, such an arrangement cannot be considered as an option. Such expenses by the dealers would be payment basically on behalf of the manufacturer and requires to be added to the assessable value. 10. In .....

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e been carried out by the buyers on behalf of the manufacturer; that the assessee has no enforceable legal right to insist on incurring such advertisement expenditure. The contention of the Department that there is no option available to the dealers does not stand proved. The stand of the department that the failure on the part of the dealer may lead to the cancellation of dealership and therefore there is a enforceable legal right is acceptable. Such cancellation cannot enable recovery of deale .....

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ble legal right against the customer to insist of the incurring of such advertisement expenses by the customer. 11.1 Regarding the issue of reimbursement of cost of complimentaries in the case of M/s. Maruti Suzuki India Limited, as per the Ld DR, the same are done in pursuance of clauses 28, 29, 30 and 31 of the dealership agreement which are re­produced below : 28. Promotion The Dealer shall at all times during the currency of this Agreement use its best endeavours to promote sales of .....

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the prior, written approval of the company. 29.2 Undesirable Advertising The dealer will not advertise or promote the Products or Services in such a way as may annoy cause injury to or detract from the company or the Products or Services or other Authorised Dealers. Should the Company consider that any advertisement announcement or other advertising or promotional material to be undesirable. The Dealer shall immediately withdraw the same at its expense and not repeat it. 30. Display at Outlets T .....

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l current company promotional materials with such literature relating to the Products and the Services as the Company may specify for handing over to customers on demand. 11.2 We have not been shown that these sales of promotional materials are directly linked to sale of the vehicles. It has also not been shown that if the dealers do not buy such material for stocking and distributing them to the buyers any legal remedy is available to the manufacturer. The contention that there is no optio .....

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