2004 (9) TMI 540

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....ed and equal amount of penalty under Section 11AC read with Rule 173Q of Central Excise Act and Central Excise Rules respectively and for good measure demanded interest under Section 11AB. He refrained from confiscating plant and machinery under Rule 173Q(2) Central Excise Rules since quote "In my consideration of the facts and circumstances covering this case justice is served by the imposition of penalties as above on the company". In our opinion justice would have been better served had the Commissioner not demanded the differential duty and imposed a penalty under Section 11AC read with Rule 173Q. By the way there are judicial pronouncements against imposing penalties in this manner, if one may care. 3. The facts are somewhat li....

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....with Rule 173Q, demands interest under Section 11AB but refrains from confiscating the plant and machinery under Rule 173Q(2), There should be some limit to all this he must have thought. 5. The Ld. Advocate argues that the fact the distributors firm is packed with the relations of the Directors of the manufacturing company can be a goods reason to take a closer look at the transaction between the two but not good enough to reject the assessable value on that ground. The appellant was selling the same goods to several dealers directly before 96-97, at the same price at which he now sells them to the distributor. In Philips India Ltd. v. U.O.I. [1997 (91) E.L.T. 540 (S.C.)] the Apex Court held that advertisement and sales promotion e....

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....that the distributor incurred such expenses to call the whole transaction tainted. We observe that even in unrelated party transaction also advertising expenses incurred by the distributor are not to be added to the assessable value as per the decision of the Supreme Court cited supra. While reviewing the decision in Philips India case a Bench of Supreme Court in Surat Textiles [2004 (167) E.L.T. 379 (S.C.)] held that each case has to be examined in the fact of the case. In other words Philips India should not be followed blindly. We therefore examined the facts of these case closely and held that the decision in Philips India case appears to the facts of this case. In regard to trade advance, we observe that it is for the department to bri....