2013 (11) TMI 1222

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....od from 1.6.94 to 31.10.95, during which period, M/s. Varanasi Bottling Co. Ltd. were receiving the soft drinks concentrate from M/s. Britco Foods Company Ltd. , Pune (now Coca Cola India Ltd.). As per commercial understanding between Coca Cola India Ltd. and M/s. Varanasi Bottling Co. Ltd., M/s. Varanasi Bottling Co. Ltd. were incurring certain expenses towards advertisements and publicity of soft drinks which were being reimbursed by Coca Cola India Ltd. The Department was of the view that the assessable value on which the duty was payable by M/s. Varanasi Bottling Co. Ltd. on the soft drinks being manufactured by them, should include the advertisement and publicity expenses incurred by them which were being reimbursed to them by Coca Col....

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....ft drinks and also the price at which the same was to be sold in retail and it was sharing the advertisement marking and sales promotion expenses incurred by the Varanasi Bottling Co. Ltd. by way of reimbursement of part of the advertisement expenses and hence, and, therefore, the short payment of duty by Varanasi Bottling Co. Ltd. was due to collusion of Coca Cola Co. Pvt. Ltd. with M/s. Varanasi Bottling Co. Ltd. 4. Shri Shankey Agarwal, Advocate, ld. Counsel for the respondent defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that for attracting penalty under Rule 209 A of the Central Excise Rules, 1944, a person has to be concerned in acquiring possession of, sale, purchase, storage,....

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....the impugned order-in-appeal had been passed on 24.10.2005 and corrigendum had been issued on 8.12.2005, there is no indication that filing of appeal had been authorized by the Committee of Commissioners as per the provisions of Section 35 B(2) as amended by Section 79 of the Finance Act, 2005 w.e.f. 13.5.2005. On this very ground, this appeal has to be dismissed. 6. Even otherwise in this appeal, the Revenue's plea for imposition of penalty on the respondent is not sustainable even on merits, as under Rule 209 A of the Central Excise Rules, 2002, penalty can be imposed on a person who acquires possession of or is in any way concerned in transporting, removing, deposing, keeping, concealing, selling or purchasing or in any other manner, ....