Custom, Excise & Service Tax Tribunal
Cce, Allahabad (U.P.) vs M/S. Coca Cola India Ltd on 18 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/decision:18/09/2013
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
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1. Whether Press Reporters may be allowed to see
CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Excise Appeal No.E/165/2006-EX (SM)
[(Arising out of Order-in-Appeal No.103-CE/ALLD/2005 dated 24.10.2005 passed by the Commissioner (Appeals), Central Excise, Allahabad (U.P.)]
CCE, Allahabad (U.P.) Appellants
Versus
M/s. Coca Cola India Ltd. Respondent
(Earliest M/s.Britco Foods Co.Ltd.) Appearance: Rep. by Shri P.K.Sharma, DR for the appellant.
Rep. by Shri Shankey Agarwal, Advocate for the respondents.
Coram: Honble Shri Rakesh Kumar, Member (Technical) Final Orders No.57743/2013 /Dated:18.09.2013 Per Rakesh Kumar:
The facts leading to this appeal are, in brief, as under:-
M/s. Varanasi Bottling Co. Ltd., Varanasi are engaged in the manufacture of soft drinks chargeable to central excise duty under Heading No.2202.20 of the Central Excise Tariff Act. The dispute pertains to the period 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 Cola India Ltd. On this basis, after issue of show cause notice dated 25.06.99, the Addl. Commissioner vide order-in-original dated 31.10.2000 confirmed the central excise duty demand of Rs.10,41,005/- against M/s. Varanasi Bottling Co. Ltd. along with interest on this duty under Section 11 AB and besides this, while penalty of equal amount was imposed on M/s. Varanasi Bottling Co. Ltd. under Section 11 AC, penalty of Rs.1,00,000/- was imposed under Rule 209 A of the Central Excise Rules on M/s. Britco Foods Co. Ltd. (now Coca Cola India Ltd.). On appeal being filed by the respondent to the Commissioner (Appeals) against this order of the Addl. Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 24.10.2009 set aside the penalty on the ground that the ingredients for imposition of penalty on M/s. Coca Cola India Ltd. under Rule 209 A of the Central Excise Rules are absent. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue.
2. Heard both the sides.
3. Shri P.K. Sharma, ld. Departmental Representative, assailed the impugned order by reiterating the grounds of appeal and emphasized that the respondents have dealt with the goods which they have knew or had reason to believe are liable to confiscation and, hence, the impugned order setting aside penalty on them under Rule 209 A is not correct. He also pointed out that the Coca Cola Co. Pvt. Ltd. was controlling the production output as well as cost of production of the soft 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, transportation, etc. of the excisable goods which he knew or had reason to believe are liable for confiscation, that in this case the respondent have not dealt with the excisable goods manufactured by Varanasi Bottling Co. Ltd. ,in any manner and hence, the provisions of Rule 209 A of the Central Excise Rules are not attracted at all. He also pleaded that the appeal filed by the Revenue is invalid appeal inasmuch as while in terms of the provisions of sub-section (2) of Section 35 B as amended with effect from 13.05.2005, the authorization for filing the appeal against the Commissioner (Appeals)s order could be given by the Committee of Commissioners, in this case, there is no such authorization and the appeal as even has been simply signed by the commissioner. He also pleaded that an important ingredients for imposition of penalty under Rule 209A is that the person who is concerned in dealing with the goods in the manner as specified in this Rule must have knowledge that the goods are liable for confiscation and that in this case, neither in the show cause notice, there is any proposal for confiscation of the goods nor any finding on this point has been given as to whether the goods cleared by M/s. Varanasi Bottling Co. Ltd. were liable for confiscation and that in view of this also, penalty cannot be imposed on the respondent.
5. I have considered the submissions from both the sides and perused the records.
6. As regards the preliminary objection, I find that while 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 Revenues 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, dealing with the exciseable goods, which he knew or had reason to belief, are liable to confiscation. In this case, the respondent had neither acquireD possession of the excisable goods nor were concerned in removing, depositing, keeping, concealing, selling or purchase of the goods manufactured by Varanasi Bottling Co. Just because, they partially reimbursed the advertisement expenses incurred by Varanasi Bottling Co. the respondent cannot be said to be concerned in dealing with the excisable goods munufactured by M/s. Varanasi Bottling Co. in any other manner, as the terms in any other manner has to be construed in enjusdem generis with the preceding terms. Not only this, even a finding on the point as to whether the goods manufactured and cleared by Varanasi Bottling Co. Ltd. which are alleged to have been dealt with by the respondent are liable for confiscation has not been given by the adjudicating authority. In view of this, I do not find any infirmity in the impugned order. The Revenues appeal is dismissed.
( Rakesh Kumar ) Member (Technical) Ckp.
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