TMI Blog2004 (12) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ets, an excisable commodity. They were using the brand name of M/s. BPL in terms of Agreement dated 4-10-1991 entered into by them with M/s. BPL Ltd. During the disputed period, 98% of the Television sets were sold to M/s. BPL Ltd. and 2% were sold to M/s. BPL Sanyo Technologies Ltd. (hereinafter referred to as BPLSTL for short). M/s. BPL Ltd. was a Public Limited Company with shareholding by financial institutions as well as general public. Prior to March 94, colour television were liable to excise duty at specific rate. With effect from March 1994, the levy became ad valorem. The Revenue proceeded against the Respondents demanding duty on the basis of sale price of M/s. BPL Ltd alleging that the transaction between the Respondents on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital of the Respondents' Company. (k) The buyers and the sellers are related persons. 3.The adjudicating authority after hearing the Respondents issued a very detailed order concluding that the Respondents and buyer companies, namely M/s. BPL Ltd. M/s. BPLSTL are not related persons in terms of Section 4(4)(c) of the Central Excise Act, 1944 inasmuch as sales price is the sole consideration, there is no mutuality of interest and the two companies are not holding or subsidiary company or relative or distributor or sub distributor of the each other. He held that the price charged by the Respondents shall be the normal price in the course of wholesale trade at the time and place of removal for the purpose of levy of duty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under these circumstances, mutuality of interest need not be established as it is presumed to be present as held by the Hon'ble Apex Court in case of Mcdowell and Co. Ltd. v. Commercial Tax Officer [(1985) 3 SCC 230] further reiterated in the case of Calcutta Chromotype v. Collector of Calcutta [1998 (99) E.L.T. 202 (S.C.)]. (iv) Mutuality of interest in the business of each other is corroborated by the additional evidence given below :- (i) M/s. BPL Ltd. transferred the equity of M/s. BPL Sanyo Utility Appliance worth Rs. 23.9 Crores to M/s. Celestial Finance Ltd. at the cost price while the market price of the said shares was more than 4 times the cost price. (ii) M/s. BPL gave M/s. DEL an absurdly huge "Caution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have 99% control over the companies. (ii) It is settle by decision of the Supreme Court in the case of Alembic Glass Industries Ltd., v. CCE, reported in 2002 (143) E.L.T. 244 (S.C.) that in the case of Public Limited Companies, the shareholding of the shareholders is irrelevant. He also relied on a plethora of case laws in support of his contention. (iii) The Respondents and BPL Ltd. do not have inter-se shareholding between them. In fact there is a clear finding given by the Commissioner in the impugned order on this fact. No evidence has been given in the show cause notice or in the grounds of appeal that the Respondents or BPL Ltd. had interest in the business of each other. (iv) There is no finding regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (153) E.L.T. 398 (Tri. - Bang.) where the buyer involved is the same. In that case both the Commissioner of Central Excise (Appeals) and the Tribunal held that the companies cannot be considered as having interest in the business of each other. (x) In any case, the entire demand is time barred. 8.We have considered the rival contentions. The adjudicating authority has indeed considered all the contentions raised in the Revenue's appeal before us and has given a very detailed findings. After analyzing Section 4 of the Central Excise Act, 1944, the Original Authority relying on the Hon'ble Supreme Court judgement in the case of M/s. Calcutta Chromotype Ltd. v. Collector of Calcutta [1998 (99) E.L.T. 202 (S.C.).] has come to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sued exclusively for its own purposes. Even though Shri T.P.G. Nambiar holds shares in the Respondent's company, he is not a Director of the same. The company's decisions are taken by the Board of Directors. All the Directors of M/s. BPL did not have shares in the Respondent's company. These issues have been gone through by the Original Authority in depth leading him to conclude that the two companies do not have any mutual interest. The Original Authority has extensively dealt with a large number of case laws on the subject and has given a categorical findings that there is no case to hold that the transaction between the two companies is not at arms length. In view of the decision of the Tribunal in the case of CCE, Bangalore v. BPL S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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