Case: COMMISSIONER OF CENTRAL EXCISE, NEW DELHI Vs. M/S. ACORN ENGG. LIMITED

1. This Appeal is filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (in short CEGAT), New Delhi dated 7th January, 1999. 2. The Respondents were availing benefit of Notification No. 120/75-CE dated 30th April, 1975. The Department issued a show cause notice on the ground that their sales were to M/s. Fenner (India) Limited. It was claimed that as M/s. Fenner (India) Limited was the holding company of the Respondents, condition (iv) of the Notification had not been fulfilled. Condition (iv) reads as follows :- (iv) the invoice price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer other than the relationship, created by sale of the aforesaid goods; 3. In the adjudicating Order, benefit of the Notification was sought to be denied only on the basis that M/s. Fenner (India) Limited, as the holding company, was a related person and consequently the invoice price was influenced. 4. The Tribunal has, by the impugned Judgment, held that there is no evidence to show that the invoice price had been influenced by any commercial or financial consideration or by reason of the relationship. It is held that the burden was on the Department and in the absence of any such proof, the benefit of the Notification cannot be denied. 5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied.