TMI Blog2019 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) TMI 683 - CESTAT NEW DELHI]. The appellant and said AITC/firm are not related persons and accordingly the provisions of Rule 9 of the Valuation Rules are not attracted - appeal allowed - decided in favor of appellant. - Appeal No. E/50605/2018-(DB) - A/50031/2019-EX[DB] - Dated:- 2-1-2019 - Mr. Anil Choudhary, Member (Judicial) And Mr Bijay Kumar, Member (Technical) Shri Amit Jain, Smt Sukriti Das, Adv. for the appellant Shri H.C. Saini, DR for the respondent ORDER Per Anil Choudhary 1. Heard the parties. 2. The issue involved in this appeal is, Whether the appellant i.e. Balmar Marketing Pvt Ltd. and one Aipiai Electric Trading is a partnership firm; and Whether they are related persons and attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are not sold to such buyers, to buyers( being related person), who sells such goods in retail: Provided that in a case where the related person does not sell the goods but uses or consumes such goods in the production or manufacture of articles, the value shall be determined in the manner specified in rule 8. 4. Ld. Commissioner in the impugned order has recorded the constitution of the company and the partnership firm as follows; (i) M/s BMPL Shri Designation Relation Parasmal Jain Managing Director Brother of Shri Dinesh Jain father of Shri Bilesh Jain of M/s BMPL and also brother of Shri Suresh Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 84,485.55 42,90,52,829.00 Sale as per note No. 31 2014-15 75,82,92,752.00 433308855.00 Sale as per note No. 32.2 2015-16 1008333939.10 51,00,73,227.62 as per note No. 32.2 6. Considering the rival contentions and appeal records, we find that as the Appellant company is incorporated under the Companies Act and only for the fact that the partners of the partnership firm, namely, M/s AETC, are related, will not make them relative as defined under Section 2(41) of the Company Act read with Schedule 1A of the Companies Act, as has been held by this Tribunal in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings in terms of sub-clause (iv) of Explanation-I in Section 2(g) of MRTP Act. The Original Authority further held that the respondent and all the buyers are related in terms of sub-clause (ii) of Clause (b) of sub-section (3) of Section 4 of the Central Excise Act. He arrived at this conclusion treating the companies also as natural person and being relative of one another. The impugned order rejected the findings of the Original Authority regarding the respondent and the buyers being relative . It was further held that since all goods produced were not sold to these buyers, the scheme as contemplated under Rule 9 of Valuation Rules will not be applicable regarding the respondent and M/s. Cosmos Ispat Pvt. Ltd. being inter-connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a jurisdic person also can have a relative in terms of Section 2(41) of the Companies Act is totally untenable. The relative as defined under Section 2(41) should be in such way as specified in Section 6 of the Companies Act. In terms of Section 6, a person shall be deemed to be a relative of other, if, and only if, they are members of a HUF or husband and wife or one is related to other, in a manner like father, mother, daughter, brother, etc. A corporate entity, the respondent being a Public Limited Company, cannot fit into being called a relative in this context. It is apparent that the understanding by Revenue is due to mixing up of related person with relative . Further, the submission that the profit accruing from sale th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son should be related to the assessee as per Section 4(4)(e) even in the Act and (iii) importantly the price charged from the related person was not the normal price but a price lower than the normal price and because of extra commercial consideration, the price charged was less than the normal value. In ITC Ltd., case (referred to supra) this Tribunal held that merely because the buyer and the seller are related, it cannot be allowed that price at which the buyer further sells the goods shall be taken as the assessable value. It is important to see that whether the relationship influenced the price of the goods sold to the buyer. The said decision was also given in the context of the new valuation rules. In the case under consideration, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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