ORDER
S.S. Sekhon, Member (T)
1. This appeal is against Order-in-Original No. 42/94 dated 10.11.94. By the above said order, the Commissioner has confirmed demand of duty on clearances made to a partnership firm namely M/s. Popular Gas Agency, which was held by him to be a related person, as the Managing Director of the manufacturer company, which is a private limited company, was one of the partners in the partnership firm, to whom clearances were being effected and this was considered to be a cause to disallow the clearances on the sale price shown on the clearance documents and resort to the proviso to Section 4(1)(a) and for the purpose of determining duty the sale price of the partnership concern was adopted after granting some deductions.
2. We have heard S/Sri R. Raghavan and T.S. Balasubramanian,. learned Advocates for the appellants and Sri S. Kannan, learned DR for the Revenue and after considering their submissions, we find that the resort to proviso clause to Section 4(1)(a) is not called for when admittedly the show cause notice itself discloses that 25% of the sales were to different independent buyers at the factory gate, when the factory gate price is available, the question of disregarding the same and going to related person price without establishing the mutuality of interest between the manufacturer and partnership concern is not permissible. In this case, interest of each of the business of other i.e. mutuality of interest has not been established. To attract proviso (iii) and to come to a conclusion that the sales are made through related person, in this case, would be in conflict with the Supreme Court decision in the case of UOI v. Kantilal Chunilal and Ors. as and the principle established therein which has been upheld by the Hon’ble High Court of Bombay in the case of Cosmos India Rubber Works as reported in 1988 (19) ECR 108 (Bom.), wherein it was held that merely because much volume of sales of a particular company goes to some partnership of other entities that itself does not authorise the department to levy excise duty on prices at which these later entitles sell the product. Secondly, merely because certain Directors are common to the assessee and the wholesalers be they partnership or limited company, that itself will not involve relationship clause and make the sales to related person unless there is mutuality of interest established in the case of each other. The Tribunal in the case of CCE v. The Enfied India Ltd. as , wherein 20% of the sales was to persons other than related and there was nothing to show that 20% buyers would not have got more than 20%, if they so opted. Such a price to unrelated independent buyer would have to be applied to sales to a related person. In the present case, we have 25% of such sales, with nothing to show that it could not be more than that. Therefore, we cannot come to a conclusion that goods were generally sold through a related person to attract the proviso (iii) to Section 4(1)(a). Moreover, mutuality of interest in the business of each other is also required to be established. No contrary decision was shown to us. The normal price is therefore, required to be redetermined in this matter.
3. In this view of the matter, we set aside the order impugned and remand the matter back to the original authority to re-determine the issue as herein-above. The appeal is allowed by way of remand.