Per K.K. Agarwal:

These are three appeals arising out of the same order in original. Two appeals have been filed by the Goa Bottling Company and CocaCola India Ltd. and third by the department.

2. The appellants M/s. Goa Bottling Company are engaged in the manufacture of aerated water of various brands of Coca Cola Company out of the concentrates purchased from M/s. Britco Foods Co. Ltd. now renamed as M/s. Coca Cola India Limited upto November, 1997.

3. M/s. Coca Cola India Limited were sharing and reimbursing a part of the expenditure incurred by the appellant towards the advertisement and marketing and sales promotion of the various brands of the soft drinks manufactured and sold by the appellant. On Scrutiny of balance sheet of the appellant indicated that they had received Rs. 28,51,089/- from M/s. Coca Cola India Ltd. by way of credit note of Rs. 26,47,222/- directly during the period 01.7.94 to 31.10.95. It appeared to the department that the expenses reimbursed by,the M/s. Coca Cola, India Limited were enriching the marketability of the soft drinks and should have formed part of the assessable value of the soft drinks manufactured and cleared by the appellant during the period from 01.04.94 to 31.10.95 and therefore, they were issued a show cause notice demanding duty amounting to Rs. 23,42,635/- and seeking to impose penalty under Section 11AC and Rule 173Q (2) and penalty under Rule 209A on M/s. Coca Cola.

4. The learned advocate for the first appellant M/s. Goa Bottling submits that the additional consideration received by them were from the supplier of the raw-material i.e. concentrates and not from the buyer of the finished product i.e. aerated water. Therefore, the price charged from the buyer is not in anyway influenced by the reimbursement of certain expenses by the concentrate supplier who wanted to promote his brand and reduced the prices in view of stiff competition from the manufacturer of other brands. Since there was no flow back or extra payment by the buyer the question of inclusion of any expenses re-embossed by the supplier of the concentrate material does not arise. In support thereof reference was invited to Cegat decision in the case of Haryana Drinks Private Limited Vs. Commissioner of Central Excise, 2000 (40) RLT 769 (Cegat) wherein it was held that the additional consideration in the form of appellants getting incentives from raw-material (concentrate) supplier the same not to be added to the assessable value of the final product sold by the appellants to their buyers as the incentives are not flowing directly or indirectly from the buyers of final product. It was submitted that consequently no penalty under Section 11AC Rule 173Q and 209 (A) was impossible as also was held in the above decision. A similar view was taken in Brindavan Beverages Ltd. Vs. Commissioner C. Excise, 2001 (135) ELT 766 (Tribunal) wherein it was held that the additional consideration paid by the supplier of raw materials cannot be added in determining the assessable value as who fixes the price is not the criterion in determining the assessable value.

5. We have considered the submission. We find that the facts of the case are fully covered by the two decision cited supra and we allow the appeal of Goa Bottling with consequential relief.

6. So far the appeal of M/s. Coca Cola is concerned for abetment under Rule 209A since no duty has been held to be payable by M/s. Goa Bottling the question of imposing any penalty on M/s. Coca Cola does not arise.

7. As regards the department's appeal on the ground that the Commissioner has failed to charge any interest under Section 11AB since we have held that no duty is required to be paid the question of charging any interest does not arise. The department's appeal is accordingly dismissed.

8. All the three appeals are disposed off in above terms.