JUDGMENT
Gowri Shanker, Member(Technical)
1. In the order impugned in the appeal E/3085/500, the Commissioner (Appeals) has confirmed the finding of the Asst. Commissioner that in determining, under rule 6(b)(ii) of the Valuation Rules, the value for assessment of the yarn that the appellant manufactured and utilised in its factory in the manufacture of fabric the cost that it incurred towards advertising and marketing cost are to be included. In the order impugned in appeal E/3084/00, he has upheld the order of the Asst. Commissioner confirming the demand for duty as a consequence.
2. In both these orders, the Commissioner expressed the view that in his opinion these charges are not includable but says that he is bound by the circular issued under 37B of the Act by the Board.
3. In our order in Cadbury India Ltd. v. CCE in appeal E/1021 and 1022/00, we had noted that the proviso under Section 37B of the Act specifically excluded the applicability of the circular issued under that section so as to interfere with the discretion of the Commissioner (Appeals) in exercise of his powers. We had also not been able to find in any of the judgments of the Supreme Court which the Commissioner (Appeals) had referred to ( Ranade Micro Nutrient v. CCE 1996 (87) ELT 19; Paper Products Ltd. v. CCE 1999 (112) ELT 765, anything that would justify the view that the circular issued under Section 37B was binding on the Commissioner (Appeals) notwithstanding the express provision to the contrary contained in the provision. We had said that the reference to the department’s officer or Central Excise officer in the judgments whom the Court said was bound by the circular would obviously not include a category specifically excluded by the statute itself. We reiterate our conclusion that the Commissioner (Appeals) was wrong in considering himself bound by the circular of the Board. He was free and indeed, required to decide the issue independently of this circular.
4. In the same order, we had held that marketing and sales expenses would not form element in assessable value of Rule 6(b)(ii). That rule bases the value for assessment on the cost of manufacture plus the profit that the assessee would ordinarily have made. Marketing and advertising expenses are incurred subsequent to the manufacture and have nothing to do with manufacture itself. These costs are therefore not includable. Duty therefore cannot be demanded.
5. Appeals are allowed and impugned order set aside.