JUDGMENT
K.K. Usha, J.
1. These are appeals at the instance of the assessee and its General Manager challenging the order passed by Commissioner of Central Excise, Meerut dated 29.1.2002. The appellant is engaged in the manufacture of Flavoured Ready Syrup (FRS) which is cleared in 18 litre canisters from the factory. They are sold to different dealers.
2. The issue for consideration in this appeal is whether M/s. Platinum Agencies Pvt. Ltd. (PAPL), one of its dealers is a related person and that assessable value of the goods has to be fixed on the basis of the price at which M/s. PAPL sells the same to its customers.
3. In the impugned order Commissioner took the view that M/s. PAPL is related to MBL as 17% of the publicity expenses incurred for Coca Cola Brands at the franchise level is shared by M/s. PAPL which would amount to additional consideration flowing to MBL. Aggrieved by the above, the assessee has come up in appeal.
4. It is contended by the appellant that M/s. PAPL is not a related person to the appellant. The fact of sharing publicity expenses will not amount to additional consideration. In support of the above contention reliance was placed on the decision of the Supreme Court in Philips India Ltd. v. Collector of Central Excise, Pune, 1997 (91) ELT 540 (SC). It is also submitted that M/s. PAPL will not come within the definition of ‘related person’ in terms of Section 4(4)(c) of the Central Excise Act, 1944. In Union of India v. Bombay Tyre International Ltd., ‘1984 (2) ECC 102 (SC) : 1983 ELT 1896 the Supreme Court has held that on a proper interpretation of the definition of ‘related person’ in Sub-section (4)(c) of Section 4, the words ‘a relative and distributor of the assessee’ do not refer to any distributor but they are limited only to a distributor who is a relative of the assessee within the meaning of the Companies Act, 1856. In the present case since the Revenue has not been able to establish that M/s. PAPL is a relative, the fact that it is a distributor or a dealer will not bring it under the definition in Sub-section (4)(c) of Section 4. The appellant further pointed out that it has only one sale price for all the 20 dealers including M/s. PAPL.
5. The learned DR submitted that the fact that major portion of the sale is to M/s. PAPL and that they are sharing publicity expenses with the appellant would show that the sale between the appellant and PAPL is not one principal to principal.
6. We find no merit in the stand taken by the Revenue. Revenue has no case that the price at which FRS is sold to M/s. PAPL is different from the sale price to the other dealers. Therefore, unless Revenue is able to show that there is additional consideration flowing to MBL from PAPL it cannot be held that the sale is not one principal to principal. By applying the ratio of Philips India Ltd., it cannot be held that sharing advertising expenses would amount to flow of additional consideration. There is no material placed by the Revenue to show that M/s. PAPL is a relative of HBL as defined under the Companies Act, 1956. Therefore, even if it is sole distributor it will not come within the term ‘related person’.
7. In the light of the above, we set aside the order impugned and allow the
appeals.