Customs, Excise and Gold Tribunal - Mumbai
Goa Bottling Company Limited And ... vs Commissioner Of Customs And Central ... on 4 December, 2001
JUDGMENT Jyoti Balasundaram, Member (J)
1. The above applications for waiver of pre-deposit of duty and penalties arise out of the order of the Commissioner of Customs & Central Excise, Goa. Demand of duty of Rs. 23,42,635/- has been confirmed and penalty of Rs. 25 lakhs has been imposed on M/s. Goa Bottling Company Limited on an application of the extended period of limitation, while a penalty of Rs. 5 lakhs has been imposed on M/s. Coca-Cola India Ltd.
2. The demand is the result of inclusion of advertisement expenses incurred and reimbursed by M/s. Britco Foods Company Ltd., (now Coca-Cola India Limited) to M/s. Goa Bottling Company Limited in respect of the advertisement charges incurred by the supplier of beverage base namely, Coca-Cola India Limited, in the assessable value of aerated water manufactured by M/s. Goa Bottling Company Limited during the period 01/04/1994 to 31/05/1995 as per the agreement and sold to independent distributors.
3. On hearing both sides we are of the view that the applicants have made out a prima facie case on merits in the light of the decision of the Tribunal in the case of Haryana Drinks Private Limited v. CCE, New Delhi reported in 2000 (121) ELT 718 wherein it has been held that advertisement expenses reimbursed by the supplier of soft drink beverage base is not includable in the assessable value of the soft drinks since it was not a consideration flowing directly or indirectly from the buyer of drinks to the assesses, in which case alone Rule 5 of the Central Excise Valuation Rules would be attracted.
4. We therefore waive the requirement of pre-deposit of duty and penalty and stay recovery thereof pending these appeals.