Customs, Excise and Gold Tribunal - Delhi
Reckitt Benckiser (India) Ltd. vs C.C.E. on 5 April, 2006
Equivalent citations: 2006(110)ECC599, 2006ECR599(TRI.-MUMBAI)
ORDER K.C. Mamgain, Member (T)
1. This appeal is filed by the Reckitt Benckiser (India) Ltd against the order of Commissioner of Central Excise, Chennai-III.
2. The appellants (formerly known as M/s. Reckitt & Colman of India Ltd.), Hosur are the manufacturer of Triclosan a bulk drug, which is used for manufacturing Pre-mix and Pre-mix, is further used in the manufacture of Dettol soap, shaving cream etc. The appellant M/s. Reckitt Benckiser (India) Ltd. (hereinafter referred to RCI) were issued a show cause notice demanding differential duty of Rs. 1,50,45,438/- on the ground that they have under valued the product Triclosan. The correct assessable value for which was Rs. 2242/- Per Kg. but it was sold at the rate of Rs. 1,200/- per Kg. to M/s. Sodium Metal Pvt. Ltd. and M/s. VVF Ltd. Penalty was also proposed on the appellant for violation of various provisions of the Central Excise Rules. The show cause notice was adjudicated by the Commissioner under the impugned order by which he confirmed the duty demand of Rs. 1,50,45,438/- by taking the normal price of Triclosan at the rate of Rs. 2,242/- per Kg. under Section 4 of the Central Excise Act and imposed the penalty of Rs. 1,50,45,438/- on the appellant under Section 11AC of the Central Excise Act and penalty of Rs. 30 lakhs under Rule 173Q(1)(a) of Central Excise Rules 1944.
3. The appellants have challenged the findings of the Commissioner on various grounds. It was argued before us that this case was remanded to the Commissioner by the Chennai Bench of Tribunal under Order No. 445/2002 dated 22.3.2002. During the first adjudication proceeding under Order in Original No. 12/2000 dated 30.11.2000 penalty of Rs. 30 lakhs was not imposed on the appellants. Now penalty of Rs. 30 lakhs has been imposed under Rule 173Q(1)(a) of the Central Excise Rules. This penalty cannot be imposed by the Commissioner as in the earlier proceedings this penalty was not there and the Commissioner cannot impose additional penalty during the de novo proceedings. This position has been consistently held by the Tribunal in various decisions.
4. The Commissioner has determined the assessable value at the rate of Rs. 2242/- per Kg., although, during the entire period of show cause notice the goods were not sold to any customer at the price of Rs. 2242/- per Kg. The appellants had filed the price list in Part-II vide their letter dated 22.6.1993 and explained that they have executed a contract with M/s. Sodium Metal Pvt. Ltd. and are selling the goods at the rate of Rs. 1200/- per Kg. In their earlier price lists before June, 1993 the price was Rs. 2242/- per Kg. This reduction was explained by them vide their letter dated 22.6.93 stating that in 1991 they could sell only 625 Kg. and in 1992, 222Kg. in the domestic market. Their annual production is 18 M.T. and due to high price there was extra stock filing of the goods. Since the shelf life is fast expiring they have accepted the order of M/s. Sodium Metal Pvt. Ltd. for effective disposal of the stock lying with them and accordingly M/s. Reckitt & Colman of India Limited requested to approve the price list in Part II and this price list was approved. The said price list at the rate of Rs. 1200/- was approved by the Assistant Commissioner effective from 15.10.93. Thereafter, from 1994, when price list was dispensed with and invoice price became the assessable value, they continued to show the price of Rs. 1200/- in their invoices. The contract price of Rs. 1200/-, which was originally for one year, was extended for 5 years and they continue to sell the goods to M/s. Sodium Metal Pvt. Ltd. at the rate of Rs. 1200/- per Kg. Thus, they have sold the goods at the contract price as per the provisions of Section 4(1)(a) of the Central Excise Act. The claim of the Revenue that there were enquires from various buyers for sale of the goods at Rs. 2242/- per Kg. during the period in dispute and they refused to sell the goods at a higher price shows that there was normal price of Rs. 2242/- per Kg. at which they were earlier selling the goods prior to 15.10.93 and the customers were available. It was argued that the orders, which they were receiving from such customers, were only for a very small quantity like 10 Kg. or 15 Kg. and, therefore, it was not viable to sell such small quantity to such buyers. During the period of investigation they had arranged with M/s. Sodium Metal Pvt. Ltd. to utilize their major portion of the production in the manufacture of Pre-mix and they were selling the goods at the contract price of Rs. 1200/- per Kg. It was also argued that their cost of production was Rs. 746.51 per Kg. during 1993, which increased to Rs. 849.99 per Kg. during 1998-99. Thus, their selling price of Rs. 1200 per Kg. was giving them margin profit to the extent of 41.18%. Thus, they were not selling the goods at the cost which were either lower than the cost of production or they were suffering losses.
5. The price at which they were selling the goods to M/s. Sodium Metal Pvt. Ltd. cannot be discarded unless it is established that the appellants and M/s. Sodium Metal Pvt. Ltd. are related persons or that the price was not the sole consideration. The Department has not been able to establish any relationship between the appellant and M/s. Sodium Metal Pvt. Ltd. to hold that they are related persons. In the finding of the Commissioner, there is no finding that any additional consideration has flown from M/s. Sodium Metal Pvt. Ltd. to the appellant. Therefore, the price declared by them under Section 4(1)(a) of the Central Excise Act was correctly declared normal price and the duty had been correctly paid by them on this price.
6. There has been no sale of the goods during the period in dispute at the price of Rs. 2242/- per Kg. as all their sales were to M/s. Sodium Metal Pvt. Ltd. at the price of Rs. 1200/- per Kg. Therefore, there is no reason to take the price to Rs. 2242/- per Kg. at normal price from 1994 onwards. They had sold the product at the rate of Rs. 1200/- per Kg. to other buyers also but during the period 1994-95 to Feb 1999, they have sold the product at the rate of Rs. 1200/- per Kg. only to M/s. Sodium Metal Pvt. Ltd. and that has to be accepted as the correct price as the Commissioner in his order has not given any cogent reason for rejecting this price. The price of Rs. 1200/- per Kg. is based on the sale from principle-to-principle basis between the appellant and M/s. Sodium Metal Pvt. Ltd. and it is under the contract price.
7. The Commissioner in his order has given a finding that M/s. RCI had turned down many offers received by them to lift the product at the price of Rs. 2242/- per Kg. The RCI had never disclosed the full fact that Triclosan removed at the price of Rs. 1200/- per Kg. would be used by the receiver in manufacturing Dettol range of products, which in turn would be entirely sold to RCI only. By such willful mis-statement and suppression of facts RCI evaded the duty by selling the goods at a price lower than Rs. 2242/- per Kg. for which the customers were available. The motive of under valuing the cost of Triclosan supplied to M/s. Sodium Metal Pvt. Ltd. and M/s. VVF Ltd. is clear as the pre-mix of Dettol range of products in which Triclosan was used as input was coming back to M/s. RCI. It was argued for the appellants that Triclosan as an input is used only to the extent of 1% in manufacture of Pre-mix and the pre-mix is sold to M/s. Godrej Soaps Ltd. and other concerns that are manufacturing Dettol range of product. The sales to these concerns are on principle-to-principle basis and the Commissioner Bombay in earlier order No. V-Adj.(Ch:38) 15-57/91 dated 30.3.1992 in case of M/s. Sodium Metal Pvt. Ltd. has held that "transactions of assessee with M/s. Reckitt & Colman of India Limited for the purchase of Parachlorometaxylenol (PCMX) and with M/s. Godrej Soaps Ltd. for sale of Pre-mix Compound were on principle to principle basis and purely on commercial consideration, therefore, I may inclined to hold that the allegation that M/s. Sodium Metal Pvt. Ltd. was an agent, dummy and captive unit of M/s. Reckitt & Colman of India Ltd. are not sustainable." It was argued that in the contract the price has been declared and in the price list filed by them in 1993 they have stated that they are selling the goods to M/s. Sodium Metal India Ltd. Under the law they are not required to disclose that whether the final product made out of these inputs will be used by them or to whom it will be sold. The reliance was placed on the following decisions:
1. Pearls of Beauty v. C.C.E., New Delhi , wherein Para 5 of the said decision it was held that "merely because they have not indicated the use of the impugned goods in their classification lists it cannot be alleged, in the facts and circumstances of the present matter that they have willfully suppressed facts or made willful mis-statement of facts."
2. Dabur India Ltd. v. Commissioner of Central Excise, Jaipur , wherein para-11 it was held that "if the Department entertained some doubt about the classification list, it should have asked the Appellants to indicate its use.
8. It was finally argued that extended period of 5 years for demanding duty is not applicable in the present case as in 1993 itself, the Department has agreed and approved the price of Rs. 1200/- per Kg. When the price list was filed by them and the same was duly approved by the Department, the same contract was continue by for next five years and they were selling the goods at the same price under that contract which was extended. They had not sold the goods at the price of Rs. 2242/- to any customers during the period for which the demand was issued. They had not suppressed any fact from the Department as the RT-12 Returns and copies of the invoices were being submitted to the Department as required under the law.
9. The reliance was also placed by them on the following decisions in respect of their other contentions:
1. C.C.E., II, Chennai v. Beacon Neyrpic Ltd., reported in 2006 (193) E.L.T 16 (S.C.), where the Supreme Court has held that assessee being related to its subsidiary company, by itself not sufficient to invoke Central Excise (Valuation) Rules, 1975 read with Section 4(1)(a) of Central Excise Act, 1944. The Department would however to go further and show that relationship has introduced an element other than purely commercial consideration in effecting sale by assessee to BCL. No such evidence has been produced.
2. Samtel Electron Devices Ltd. v. Commissioner of Central Excise, Meerut, , where it was held that Section 4(4)(c) defines 'Related Person'. As per the definition a related person is the one who is associated with the assessee and he should have interest directly or indirectly in the business of each other. This definition related person must be understood in the context of the third proviso to Section 4(1)(a). While so considered the cumulative effect of Section 4(4)(c) and third proviso to Section 4(1)(a) make it clear that three conditions, are required to be satisfy itself:
(i) there should be mutuality of interest;
(ii) the price charged should not be normal price but the price lower to the normal price and that extra commercial considerations have reduced the normal price; and
(iii) the alleged related persons should be related to the assessee as defined in Section 4(4)(c) Evidence on record in this case does not warrant a finding of mutuality of interest. The manufacturer SEDL and purchaser SCL, on the evidence before us cannot be found to have interest in the business of each other. In any view of the matter the price charged by SEDL and SCL are not shown to be the normal price. Passing on extra-commercial considerations from SCL to SEDL has also not been established.
3. Oscar Pharmaceuticals Pvt. Ltd. and Ors. v. Collector of Central Excise, New Delhi 1999 (35) RLT 215 (CEGAT)-relying on Para-8 and 9 of the said judgment, it was stated that 'Oscar' was manufacturing 'Enrocin' and sold to Ranbaxy the brand name owner. Raw material in Enrofloxacin was purchased by Oscar from Ranbaxy at Rs. 6000/- per Kg. though it was value at Rs. 10,000/- per Kg. By Ranbaxy. On the basis of sale price of Enrofloxacin to Oscar and sale price of other manufacturer and Ranbaxy's export price of Rs. 6000/- per Kg. value of Rs. 6000/- per Kg. was accepted. No under valuation of Enrofloxacin or depression of price of Enrofloxacin was accepted.
4. Commissioner of Central Excise, Meerut-I v. Bisleri International Pvt. Ltd.,
10. On limitation it was argued that in view of the facts given in the above paragraphs there is no suppression of facts on the part of the appellant. Therefore, extended period is not applicable. Reliance was placed on the following decisions:
1. M/s. Anand Nishikawa Co Ltd. v. Commissioner of Central Excise, Meerut, reported in 2005-TIOL-118-SC-CX.
2. Jayyushin Ltd. v. Commissioner of Central Excise, New Delhi, reported in 2001 (137) E.L.T. 1098 (Tri.-Del.)
3. Dabur India Ltd. v. C.C.E., Jaipur, .
11. On behalf of the Revenue it was argued that the appellant had not disclosed to the Department that Triclosan sold by them to M/s. Sodium Metal Pvt. Ltd is being used in the manufacture of pre-mix, which is, supplied to Godraj Soap Pvt Ltd. and VVF Ltd. who in turn manufacture Dettol Soaps, Ivory Soap and Shaving cream and the same is sold to the appellants. Thus, by supplying Triclosan at a lower price, the value of the goods which are finally manufactured by using pre-mix also gets reduced and the appellant get those goods i.e. Soap and Shaving cream at the reduced price and then they marketed those at their own price. Since this fact was not disclosed to the Department in their price list or the declaration submitted regarding their sale pattern, they have suppressed the material facts, which came to the notice of the Department after investigations from those factories, which were situated in different areas in India. Triclosan is the product manufactured by the appellant only and they have got monopoly on the product. Therefore, to get the benefit of reduced price by selling it to M/s. Sodium Metal Pvt. Ltd. They did not sell it at higher price to other customers who were placing the order for the same with the appellant but the appellant inform them that their production is totally used by them for their own product. The appellants claim that they have not sold the goods during the disputed period at the rate of Rs. 2242/- per Kg is a situation created by them by refusing to supply the goods at this price to other customers who were willing to buy the goods at this price. Thus, the normal value of Triclosan was Rs. 2242/- per Kg at which the other customers were willing to purchase the same and not Rs. 1200/- per Kg at which the product was sold to M/s. Sodium Metal Pvt. Ltd. Thus, the appellant had suppressed the value of the product as they were getting the benefit on the price of soap, shaving cream which was being purchased from M/s. Godrej Pvt. Ltd. and M/s. VVF Ltd.
12. It was also argued that the price of Pre-mix were being governed by the appellant as is apparent from the fax dated 25.11.97 sent by M/s. Sodium Metal Pvt. Ltd. to M/s. RCI Ltd. and reply of M/s. RCI under their fax dated 2.12.97 to M/s. Sodium Metal Pvt. Ltd. The fax messages are reproduced as under:
(i) Fax dated 25.11.97 We accept Price Revision of Premix to Rs. 307/Kg and Premix for D.L.S. to Rs. 311/Kg w.e.f. 1.12.97 with a most humble request to increase mark-up from Rs. 19.30/Kg to Rs. 25/Kg, which is just 1.5% of Rs. 307/-, in order to absorb increased cost of last 3 years for salary & wages, power tariff, pollution control, administration & tele-communication, consumables, Insurance of Building Block/Plant & Machinery/stock of raw materials, finished products and stock in process etc effect of which is very much adverse on net realization.
We will be greatly obliged for your consent to abovesaid increase in the mark-up.
We are sure that you will be considerate and do the needful.
However, we accept the Price Revision, otherwise also, unconditionally, in good faith.
(ii) Fax dated 02.12.97 As per your Fax, I am confirming that the revised price of pre-mix to be Rs. 307/- per Kg basic for Dettol soap and Rs. 311/- per Kg basic for Dettol liquid soap, wef 1.12.97. I am confirming the revised prices to M/s. VVF, M/s. Godrej and M/s. Ivory Soaps. However, please note that you must work out the saving you had by using PCMX at a reduced rate. Effective despatches from Hosur to mid October, 1997. This saving amount is to be recorded and will be adjusted against any adverse material cost increase at a later date please let me know the savings figure most urgently.
Considering the fact that volume requirement for pre-mix had been increasing over the last 2-3 years, by round 20% and also since the finance cost had gone down by at least 3%-4% over this period, we cannot justify your request for increase in Mark-up. We may review the same some time toward end of 1998.
Please acknowledge receipt of this Fax.
It was, therefore, clear that the appellants were manipulating the price of the product pre-mix to their advantage and the price at which they have sold the Triclosan to M/s. Sodium Metal Pvt. Ltd. is not the normal price. The normal price was only 2242/- per Kg. Giving the wrong information to their customers that they cannot supply Triclosan to them as they are consuming product Triclosan themselves, was also incorrect, as the product was being used by M/s. Sodium Metal Pvt Ltd. In 1994 they had sold 105 Kg of Triclosan to Procter and Gamble at the price of Rs. 2242/- per Kg. However, no invoice for the same was shown. The appellant had stated that this was sold in 1994. This period is covered by show cause notice. It was also argued that in invoice for the year 1996 till 1999 they were showing the Unit value of Triclosan as Rs. 2242/- and then 46.4% was being shown as deduction. It was argued that if the contract was for Rs. 1200/- per Kg. during this period then question of Unit price being shown as Rs. 2242/- and then showing the deduction of 46.4% is misleading as this only shows that Unit price was Rs. 2242/- and the deductions are given on some account which is not explained in the invoices nor in the pattern of sales. It was, therefore, argued that the normal price of the goods in the ordinary course of trade was Rs. 2242/- per Kg. Reliance was placed on the decisions of the Supreme Court in the following cases:
1. Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai, relying on Para-6 of the said decision where it is stated that the value according to Section 14(1) of the Customs Act, 1962 shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade. The word 'ordinarily' necessarily implies the exclusion of "extraordinary" or "special".
2. Commissioner of Central Excise-II v. TISCO Ltd. - relying on Para-6 to 9 of the said decision, it was argued that merely because different prices are charged from different buyers by itself does not make such buyers as belonging to different class of buyers merely because the parties are not related persons also does not mean that each buyer becomes a class within itself.
3. Kirloskar Brothers Ltd. v. Commissioner of Central Excise, Pune, - Relying on Para 12-15 of the said decision it was argued that classification of buyer can be made on the basis of regions depending upon quantum of turnover in a particular region and special factors relatable to that region. Discount has to be as per normal practice of wholesale trade in such goods and cannot be given on extraneous considerations but has to be founded on some rational basis.
12. It was also argued for the Revenue that Shri D.D. Kapasi, Managing Director of M/s. Sodium Metal Pvt. Ltd. in his statement dated 11.1.99, in reply to question No. 6 stated that price of Rs. 1200/- per Kg for Triclosan were arrived at by RCI for us and we accepted till another negotiation as we believed that they are the only manufacturer in India. Till date neither RCI wanted up-ward revision for this item nor we ask for price reduction for the same reason.
13. We have considered the submission made by both sides. The main issue in this appeal to be decided is whether the price of Rs. 1200/- at which Triclosan was sold to M/s. Sodium Metal Pvt. Ltd. can be taken as normal price when the same goods were sold to other customers prior to the period of the show cause notice at the rate of Rs. 2242/- per Kg. According to appellants they have entered into an agreement and signed the contract for supplying the Triclosan to M/s. Sodium Metal Pvt. Ltd. at the rate of Rs. 1200/- per Kg. According to the contract signed by Shri D.D. Kapasi, Managing Director of M/s. Sodium Metal Pvt. Ltd. on 25.5.93, M/s. Sodium Metal Pvt. Ltd. has agreed to buy Triclosan of standard specification from the appellant at the rate of Rs. 1200 per Kg. from their factory at Hosur packed in fiber drum of 25 Kg capacity. The price of Triclosan against this contract will remain firm during the period of contract except if (1) Change of price is necessary due to change in statutory levies (2) there is unforeseen rise in raw material cost, which will be agreed through mutual discussions. From this contract it is clear that this is a legal documents signed by Shri D.D. Kapasi, Managing Director of M/s. Sodium Metal Pvt. Ltd.. However, Shri D.D. Kapasi, in his statement dated 11.1.99, as the Managing Director of M/s. Sodium Metal Pvt. Ltd. stated that the price of Rs. 1200/- per Kg. for Triclosan was arrived at by RCI for us and we accepted it without any negotiations. This statement of Shri Kapasi on 11.1.99 in any manner does not change the situation that the price offered to them by the appellant was not commercial. On the contrary in the contract-dated 25.5.93, M/s. Sodium Metal Pvt. Ltd. had accepted the price as per quotations dated 19.5.93 and 21.5.93 and discussions with Shri B.B. Singh General Manager (Chemical Division) of M/s. RCI Ltd. The quotations are given by the seller of the product and it is for the purchaser to accept it or not. Since M/s. Sodium Metal Pvt. Ltd. has accepted the quotations for purchase of the Triclosan, therefore, the statement of Shri Kapasi that the appellant had fixed the price for them is not a ground which show that any manipulation of the price has been done for M/s. Sodium Metal Pvt. Ltd. during the entire period of the show cause notice. We also find that in reply to question No. 14, Shri D.D. Kapasi in his statement dated 11.1.99 has stated that price of pre-mix with Triclosan is fixed by me (SMPL) taking into account cost of inputs and our profit margin of 12% to 14% which is either higher or at least at par as compared to our other products. So it is not necessary for us to consult either M/S. RCI Ltd. or the above three buyers in the matter of price fixation when SMPL is making necessary profit. Thus, the fax messages dated 25.11.97 and 02.12.97 relied upon by the Revenue that pre-mix prices were being fixed by M/s. RCI Ltd. to their advantage and were influencing the prices of Triclosan cannot be accepted. The price at which the goods were sold to M/s. Sodium Metal Pvt. Ltd. are higher than the cost of production. This fact has not been disputed by the Revenue. The main contention is that there were other customers who are willing to purchase the goods at the price of Rs. 2242/- per Kg. These offers which have been submitted by the Revenue are for the period prior to the period covered by the show cause notice and the contract price approved by Department. These offers also show that the customer wanted very small quantities like 15 Kg, 20 Kg etc. It is for the seller of the goods whether it is viable and economical for him to sell such small quantity to the customer at the higher price than to sell a bulk quantity to a customer at the lower price. The appellant had chosen to sell the goods in bulk to M/s. Sodium Metal Pvt. Ltd. with a reasonable profit for them instead of selling the goods to other customer who wanted very small quantities. Such a small quantity for which the price of Rs. 2242/- was quoted and supplies were denied by the appellant cannot be the basis for holding those prices are normal price. The normal price can only be that price at which the goods are ordinarily sold by the assessee in the course of wholesale trade for delivery at the time and place of removal where buyer is not related person and price is the sole consider. A small quantity like 15 Kg. or 20 Kg. cannot be considered as the sale in the course of wholesale trade. Therefore, the price, which was offered by some customer of small quantity and for which supply was refused by the appellant cannot be considered as normal price.
14. The main ground on which the Commissioner confirmed the demand is that Triclosan was not ordinarily sold to M/s. Sodium Metal Pvt. Ltd. and M/s. VVF Ltd. The value of goods has to be determined under Central Excise (Valuation) Rules, 1975. According to Rule 4 of Central Excise (Valuation) Rules, 1975, when the assessable value of the goods is not ascertainable for any reason, the value shall be based on the value of such goods sold by assessee for delivery at other time nearest to the time of removal of the goods under assessment subject to adjustment on account of difference in the date of delivery. The Commissioner has found that value charged in 1994 is the value to be adopted for adjustment, which is the value of Rs. 2242/- per Kg. offered prior to October, 1993. He also has found that in normal course there should have been price rise over years. We find that the Commissioner in his order has gone on a wrong track for making adjustment to the value of Triclosan at which it is sold to M/s. Sodium Metal Pvt. Ltd. on the basis of price of Rs. 2242/- per Kg. for other without making any adjustment for the time. There are specific provisions for a contract price under Section 4(1)(a) of the Central Excise Act. Therefore, once contract price is there and it was approved by competent authority after necessary inquiry then Commissioner cannot go to the Rule 4 of the Central Excise Valuation Rules, 1975.
15. It was the argument of the Revenue that when a contract had been entered into with M/s. Sodium Metal Pvt. Ltd. then why the deduction of 46.4% is shown in the invoice when Unit price is shown as Rs. 2242/- per Kg. The appellant had argued till March, 1994 when Gate passes are being issued they were showing Rs. 1200/- Per Kg. as the price in their commercial invoices. After 1.4.94, they have shown the price of Rs. 1200/- per Kg. In the manner as the Unit price for common customer is Rs. 2242/- and for M/s. Sodium Metal Pvt. Ltd. they are given discount of 46.4% so that the price is coming to Rs. 1200/- per Kg. This method of recording in the invoice which has replaced the Gate passes in any manner does not show a price less then the contract price. Therefore, simply showing the price of Rs. 1200/- per Kg. in a different manner cannot lead to conclusion that they were undervaluing the goods for M/s. Sodium Metal Pvt. Ltd. We agree with the appellant that price more than Rs. 1200 per Kg. was not charged from M/s. Sodium Metal Pvt. Ltd. There is no evidence that there is any flow back of any consideration from M/s. Sodium Metal Pvt. Ltd. to appellant. Therefore, the normal price is Rs. 1200 per Kg. only.
16. It was emphasized by the Revenue that by Fax dated 25.11.97 and its reply sent by Shri S.K. Bhomik, it is clear that the appellants were controlling the Pre-mix price which were being supplied for Dettol soap and Dettol liquid soap to M/s. VVF Ltd. M/s. Godrej Pvt. Ltd. and M/s. Ivory Soaps Ltd. We find that from these faxes it cannot be said that the appellants had manipulated the price of Triclosan for their benefit. Triclosan is used only 1% in the Pre-mix as claimed by the appellant. This position has not been controverted by the Revenue. Such a small percentage of use of Triclosan will not make any substantial variation in the price of the furnished products. It is finally being received by M/s. RCI from M/s. Godrej Pvt. Ltd., Ivory Soap Ltd. or VVF Ltd. Shri D.D. Kapasi, Managing Director of M/s. Sodium Metal Pvt. Ltd. in reply to question No. 14 of his statement dated 11.1.99 has clearly stated that they were fixing the price of pre-mix with a profit margin of 12% to 14%. Therefore, it cannot be said that appellants have manipulated the prices of Triclosan to their advantage by excluding the other customers entering into contract with the M/s. Sodium Metal Pvt. Ltd. We, therefore, find no merit in the order of the Commissioner.
16. We accordingly, set aside the order of the Commissioner and allow the appeal.
17. The Miscellaneous application No. Excise/Misc./338/05 is also disposed of as not pressed.