ORDER
U.L. Bhat, J. (President)
1. The impugned order has been passed against M/s. Swastik Surfactants (earlier M/s. Swastik Household and Industrial Products (for short, SHIP), a division of M/s. Ambalal Sarabhai Enterprises Ltd. (for short, ASEL), the factories being situated in the States of Maharashtra, Gujarat and Madras and M/s. Swastik Surfactants Ltd. (earlier M/s. Whitco Ltd.), factory in Gujarat. Two appeals have been filed by SHIP and ASEL and one appeal has been filed by Collector of Central Excise, Madras. There are five cross objections in departmental appeal. The period covered by the show cause notice is November, 1981 to November, 1986. The show cause notice invoked larger period of limitation under Section 11A(1) of the Central Excises Act, 1944. In the impugned order the Collector held that the larger period of limitation could not be validly invoked and demand should be confirmed only for the period within six months prior to the date of the show cause notice. The Collector also held that penalty could not be imposed in the facts and circumstances of the case. He, however, held that the eight marketing companies through whom the manufacturers were effecting sales should be treated as related persons and the manufacturer should pay duty on the assessable value arrived at on the basis of the prices at which independent wholesale dealers buy the product from the eight marketing companies. He directed the Assistant Collector to work out the actual amount of duty.
2. The appeal by the Revenue relates only to two questions. The Collector directed that the additional consideration which flowed to the manufacturers should be added to the cum-duty price and the assessable value should be worked out on that basis. The Department contends that the additional consideration must be added to the assessable value and not cum-duty price. That the view taken by the Collector is correct is seen from the decision of the Tribunal in Express Rubber Products, 1988 (24) RLT 482 (T) : 1998 (75) ECR 129 (T).
3. The second aspect urged by the Revenue relates to the non-imposition of penalty by the Collector. In this connection, we may advert to the relevant paragraphs in the impugned order. The show cause notice alleged suppression and misstatement of facts relating to the marketing arrangement made by the manufacturers. In paragraph 107, the Collector indicated that after making substantial enquiries on an earlier occasion, the Department had held that the marketing companies cannot be treated as related persons and this finding was confirmed by the Collector (Appeals). The Collector stated in paragraph 108 that the manufacturers furnished all relevant information asked for from time to time and, therefore, cannot be held guilty of suppression or misstatement of facts. The Collector also pointed out the position prevailing prior to the Bombay Tyre International Ltd. [1983 ECR 1627D (SC) : ECR C 663 (SC)] case in regard to the deductibility of post manufacturing expenses. On consideration of all these circumstances, he held that the larger period of limitation could not be invoked. Dealing with the aspect of penalty, he held in paragraph 121 that there was no evidence pointing to clandestine removal or breach of observance of various excise procedures and formalities and, therefore, charge of contravention of Rules 9(1), 52A, 53, 173C, 173F, 173G and 226 of the Central Excise Rules, 1944 is not proved. It was in this view that he refrained from imposing penalty.
4. The various facts on the basis of which the above findings were recorded are not in challenge. If these facts are taken into consideration, it would be clear that there urns no contravention of the rules as alleged. On the aspect of intention to evade duty, the Collector has referred to the legal position prior to the Bombay Tyre International Ltd. case. In the facts and circumstances, the Collector found intention to evade cannot be inferred. There is nothing in the circumstances to indicate that the view taken is erroneous and a contrary view should have been taken. In this view, we do not agree that this was a fit case for imposition of penalty. Therefore, appeal No. E/2688/90-A has to be set dismissed.
5. Learned Counsel for the appellants in appeal No. E/3305/89-A and 3328/89-A submits that the appellant desires to withdraw the appeals as well as the cross-objections filed in the revenue appeal.
6. All the appeals and the cross-objections are dismissed.
Pronounced and dictated in the open court.