TaxTMI 
TaxTMI 
2019 (4) TMI 1064
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....as under:- (i) Whether the goods sold from the factory gate of the appellant during the said period were sold to/through firms which were "related persons" within the meaning of the Act. (ii) Whether for the purposes of determining assessable value of goods sold from depots/selling agent's places in the light of the statutory provision then prevailing factory gate sales available, though of a small percentage, would be the basis on which the assessable value and consequently the excise duty payable on the subject goods sold from the depots/selling agent places are to be determined? (iii) Whether the demand of duty confirmed by the said order is barred by limitation? (iv) Whether the duty demand confirmed the said order is sustainable. (v) Whether the penalty imposed upon the appellant under Rule 173Q of the said Rules is legally valid and tenable? 2. The Ld. Senior Advocate filed a compilation of the case laws, written notes of arguments and list of dates and argued the issue one by one. 3. Regarding the first issue, it is the submission of the Ld. Senior Advocate that it has been conclusively established that at all materials time....
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.... (d) Tata Pigments Limited Vs. Commissioner of C.Ex., 2001 (37) ELt 1212 (T-Kol.) (e) Kitply Industries Limited Vs. Commissioner of Central Excise, 2003 (152) ELT 198 (T-Kol.) (f) Collector of Central Excise Vs. Falcon Tyres Limited, 2002 (147) ELT 1166 (g) Voltas Limited Vs. Commissioner of Central Excise, 2005 (191) ELT 1132 (P) (h) In Re: Woodcrafts, Assam, 1982 (10) ELT 583 (GOI) 4. Regarding the 3rd issue, it is the submission of the Ld. Senior Advocate that the demand confirmed is barred by limitation. 5. Regarding the 4th issue it is submitted that there has been no short payment or short levy of Central Excise Duty in the instant case. 6. In respect of the last and 5th issue, is has been submitted that penalty of Rs. 50,000/- imposed under Rule 173Q) of the Rules is illegal, invalid and bad in law. 7. Heard both sides and perused the appeal records. 8. We find that the Tribunal vide the Order No. SP-125/A154/CAL/1991 dated 20/02/1991 in Appeal no. E/565/90 (CAL) allowed the appeal on the ground of violation of principles of Natural Justice. We observe that in the de novo proceeding, the Appellant made submissions based ....
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....udgment it has been held as follows: "8. The expression 'in the business of each other' clearly denotes that the interest of the two persons have to be mutual i.e. in each other, in order to treat them as related persons. We find that the order of the Member Justice that only on the ground that the two companies had given a loan of Rs. 85.66 Crores to the assessee company was treated as sufficient to establish the relationship between the assessee and the buyer. That only shows one way traffic whereas, requirement is that of the two way traffic. The other Member, in our opinion, aptly held that this cannot be the factor which would show the mutuality of interest. For this purpose, he referred to the judgment of this Court in 'Union of India Vs. Atic Industries Limited [1984 (17) E.L.T. 323]. The Third Member has, therefore, rightly concurred with the aforesaid view of Member (Tribunal). 9. The assessee did not have any interest in the business of the buyers (Goodyear Indian Limited and CEAT Limited). Given this, the requirement of 'mutually of interest' which is a pre-requisite under Section 4(4)(c) of the Act does not get satisfied. ....
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....om the assessable value. Following the said decision, it has been held in the case of Southern Bottlers Private Limited Vs. CCE [1989 (43) ELT 427 (Tri - LB)] that in such a case wholesale price, charged at the factory gate, is treatable as assessable value irrespective of the quantum of such sales. The appeal against this order of the Tribunal's Larger Bench, preferred by the Department, was dismissed by the Supreme Court [Collector Vs. Southern Bottlers Private Limited - 1997 (92) ELT A70 (SC)] To same effect is the decision of the Tribunal in the case of CCE Vs. Falcon Tires Limited [2002 (147) ELT 1166 (Tri - Del)]. In this case 2% sales were effected at factory gate whereas 98% sales were effected through depots. It was held that ex-factory price is to be taken as basis in determining assessable value even with reference to depot sales, ex-factory price being ascertainable and that transportation charges, being post manufacturing expenses, are not included in assessable value, following the decision of the Supreme Court in Indian Oxygen Ltd. Vs. CCE (Supra). 16. On behalf of the Department the learned DR has relied upon the decisions of the Tribunal in Collector of Ce....