TaxTMI 
TaxTMI 
2014 (6) TMI 232
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....nst the Appellant for the reason that the sales figures as accounted in the books of accounts of PEL, for the period involved, for the territory assigned to the Appellant, was higher than the quantity for which the Appellant had paid excise duty. The figures as accounted by PEL are corroborated by the Annual Sales Plans for each year signed by the Appellant which reflect the actual sales of previous years. Further the Appellants paid advertisement charges to PEL taking the sales figures in the books of PEL to be correct. 4. The main defence of the Appellant from the investigation stage itself has been that,- (i) They purchase same goods from bottlers in other territories and sell in their territory and sales figures for their territory would include such figures; (ii) PEL directly sell products in their territory when there is shortage of production by the Appellant to meet the demand in the area assigned to them; (iii) The sales figures are not very accurate because the figures are compiled by taking figures over telephone; (iv) Since explanation for the variation was asked on 24-12-1993 for variatio....
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....ellants in his statement dated 7-3-1994 (Ann A-22 to the said notice) has said that as already stated earlier, they used to send reports of sales to Parle sometimes on phone, sometimes on telex and sometimes in the proforma prescribed by Parle. SMR for two months only i.e. July, 1991 and October, 1991 sent by the appellants were found in head office of PIL (Ann A-24(I) and (II) to the said notice) SMR for all other months of the long period from April, 1989 to September, 1993 were not located because the same were not prepared and sent and the information about sales were given over phone for all other months to Shri Ashish Sethi, District Franchise Manager, Delhi or prepared by him as stated in his statement dated 1-11-1993 (Annexure A-7 of the said notice). (ii) That it is very clear from the various statements and the facts mentioned above that monthly sale figures were either given over phone by the appellants to the District Franchise Manager, Delhi or prepared by him of his own by estimate and he complied the figures for all franchisee bottlers in his charge and sent them by phone/telex/fax/telegram to Head office. Figures received from District Fran....
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....tion the sales made by other franchises in the territory of the appellants as well as the sales made by the appellants in the territory of other franchisees as stated by the officials of Parle. Thus the clearance figures of the appellants as given in RG.I and RT-12 will never tally with the sale figures available with the head office of PEL. Any mistake in furnishing the figures of sales in the appellants' territory by other bottlers will result in compilation of wrong figures of sales of the appellants by PEL and the appellant would have no means to know the correctness of the figures of sales by other bottlers in this territory. For this reason also, the sale figures of the appellants as compiled by PEL head office were not correct and could not be relied upon." 6. The arguments at item (i) and (ii) of para 4 above have been examined by the adjudicating officer in para 38 and 38.1 of the order as under : "38. It is observed that the show cause notice alleges a clandestine removal on the basis of sales figures as compiled by M/s. PEL from the Sales Manager Report (SMR) after adjusting the sales out of inter franchisee purchases and direct sales by other franchisees in ....
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.... M/s. CBC submitted under the signatures of Sales Manager of M/s. CBC was recovered from M/s. PEL Mumbai. It was observed from this file that M/s. CBC have submitted sales figures in proforma SMRI MI to M6 to M/s. PEL. This clearly proves that the sales volume of the bottlers in their franchise were supplies by Parle to the DGAE (sic) were based and compiled on the basis of the sale statements submitted by bottlers to M/s. PEL. In case of M/s. CBC also, the sales figures supplied by M/s. PEL were correct figures representing the actual sales of July, and October, 1991 tally with the figures submitted by M/s. CBC with sales figures given by M/s. PEL." 7. The Appellant further submits that similar cases booked against the following parties on the basis of similar evidence have already been dropped. (i) CCE v. Coolade Beverages (P) Ltd. - 1999 (34) R.L.T. 190 (Tri.-Del.) (ii) CCE v. Moon Beverages Ltd. - 2002 (150) E.L.T. 976 (Tri.-Del.). 8. This matter is examined by the adjudicating officer in para 41.1 as under :- "41.1 I find that in the case of M/s. Moon Beverages Ltd., it was held that computerized figures alleg....
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...., and November, 1990 is enclosed. 16.2 This file also contains an inter office memo dated 12-7-1991 from Shri G.P. Selvam to Mrs. Chauhan and another note of same date written to Shri C.G. Hegde enclosing therewith a test report of Limca samples analysed at Shriram Test House indicating that M/s. Moon Beverages Ltd. have been selling diluted product in the market and as per the test results, the dilution was from 15% to 20%. 16.3 This file also contains franchise observation report for various franchises in the Northern region which inter alia, indicate that goods yield was more than 100% in case of Lucknow, Rohtak and Chandigarh whereas in case of Delhi Bottling Co., Pearl Drinks, Gurgaon, Agra Bareilly, Faizabad, Kanpur, Nazibbad good yield was from 99% to over 100% in respect of various flavours. Shri Selvam has already mentioned that this observation pertains to the period when M/s. Agra Beverages was one of their franchises." 10. The sales reports received, for the territory assigned to the Appellant, by PEL was consistently showing such trend of sales but PEL did not take any further action in this regard would imply that there was no issue of dilution of co....