Case: COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Vs. BHARTI TELECOM LTD. AND OTHERS

Ashok Bhan and Dalveer Bhandari, JJ. 1. Assessee-Bharti Telecom Ltd., Respondent No. 1 herein, (for short BTL) manufactures electronic push button telephones. It sells about 75 per cent of its product to Department of Telecommunications (for short DOT) and Mahanagar Telephone Nigam Limited (for short MTNL) and remaining about 25 per centof its product in the open market through Siemens Telecom Limited (for short STL), Respondent No. 3 herein, which is a joint venture company of BTL and STL having 49 per cent and 51 per cent sharing respectively. According to the Revenue, BTL & STL are related persons having mutuality of interest. BTL sells its product to STL at a far less price than STL sells it in the whole sale trade. It is the stand of the Revenue that the assessable value for the purpose of duty of excise is the price at which the afore-mentioned products are sold by STL in the open market whereas BTL has been paying the duty on the price at which it was sold to STL. The second point taken by the Revenue was that there had been clandestine removal of the goods and sale without paying Excise Duty. 2. Three show cause notices dated, 03rd May, 2000, 04th May, 2000 and 24th May, 2000 were issued to the BTL raising demand of Rs. 2,28,99,251/-, Rs. 9,73,66/- and Rs. 8,12,712/- respectively. 3. The Assessing Authority confirmed the demand. Assessee, being aggrieved, filed appeal before the Tribunal. On the first question, the Tribunal has accepted the appeal of the Assessee and held, that BTL and STL are not related persons and the price at which the product was sold to STL was at or about the same price at which it was sold to DOT and MTNL. On the second point regarding clandestine removal of the goods and sale without payment of Excise Duty, the Tribunal remanded the matter to the Commissioner for a fresh adjudication after taking fresh evidence. We adjourned this case to enable the parties to ascertain the outcome of the remand proceedings. After taking instructions, Mr. V. Shekhar, learned Senior Counsel appearing for the Revenue states that the proceedings regarding clandestine removal have been dropped vide Order No. 280/Ldh./03 dated, 23rd December, 2003 and the same have become final. 4. Learned Senior Counsel appearing for the Revenue did not dispute the fact that the BTL sold the goods to STL at or about the same price at which it sold the goods to DOT and MTNL. Even if the STL is taken to be a related person to BTL [we are not holding so], it has not influenced the price at which goods are sold by BTL to STL. Under the circumstances, transaction value has to be accepted. 5. Without recording any finding as to whether BTL or STL are related persons and leaving the said question open, since the product is being sold to STL at or about the same price at which it was sold to DOT and MTNL, the relationship of BTL and STL did not influence the price and, therefore, the transaction value between BTL and STL has to be accepted in the facts and circumstances of this case.

Decision reasoning: 0[ds]4. Learned Senior Counsel appearing for the Revenue did not dispute the fact that the BTL sold the goods to STL at or about the same price at which it sold the goods to DOT and MTNL. Even if the STL is taken to be a related person to BTL [we are not holding so], it has not influenced the price at which goods are sold by BTL to STL. Under the circumstances, transaction value has to be accepted.5. Without recording any finding as to whether BTL or STL are related persons and leaving the said question open, since the product is being sold to STL at or about the same price at which it was sold to DOT and MTNL, the relationship of BTL and STL did not influence the price and, therefore, the transaction value between BTL and STL has to be accepted in the facts and circumstances of this case.