Per Shri P.C. Jain :

Matter was called. None for the respondent firm. We have, therefore, heard the learned J.D.R., Shri R.K. Roy in support of the Revenue's appeal. Briefly stated the facts of the case are as follows:-

1.1. The respondents herein were engaged in the manufacture of Aerated Waters falling under the erstwhile Tariff Item 1D of the Central Excise Tariff and now under Chapter 22 of the C.E.T.A., 1985.

1.2. It was found that the respondents were charging one price for the Aerated Waters manufactured by it and subsequently, raising the Debit Notes and collecting different amounts towards the various charges - for example, cost of handling, breakage etc. The respondents were availing the benefit of exemption Notification No. 80/80 dated 19.6.80 and Notification No. 148/82 dated 22.4.82. Revenue was of the view that after including the various charges collected through Debit Notes raised by the respondents on its customers, the value of the excisable goods namely Aerated Waters would go over and above the exemption-limit as stated in the said Notifications. Consequently, the respondents would not be entitled to the benefit of the said Notifications.

1.3. The adjudicating authority (Commissioner), after denying the benefit of the said Notifications, confirmed the demand of Rs. 15,20,866.95.

1.4. On appeal before the C.E.G.A.T., the matter was remanded to the adjudicating authority since the Commissioner had decided the case ex-parte. The present impugned order passed by the Commissioner is a result of the said de-novo proceedings. The Commissioner has dropped the demand accepting the values declared by the respondents herein on the following grounds:-

"(a) On comparing the assessable value of the products of other companies, it was found that the goods are sold in the market more or less at the same price. Therefore, it will be unfair or unjust to fix the assessable value of the products of M/s. Beverages & Food Products at Rs. 43/Rs.34.50/Rs.40 per crate (Flavoured products) and Rs. 21.50 per crate for Soda as contemplated in the SCN.

(b) Certain discrepancies were pointed out by the company in issuing the SCN and on verification, it is found that the sale price has been reflected correctly in the invoices. Therefore, the charges levelled in the SCN are not sustainable and the case proceedings were dropped."

1.5. Central Board of Excise and Customs, New Delhi in exercise of its power under Section 35E of the Central Excise Act, 1944, has observed that on going through the break-up of Debit Notes provided by the respondents herein, it was found that the respondents had collected advertisement charges in different years as follows:-

"(a) On going through the break-up of debit notes provided by the assessee, it was found that the assessee had collected advertisement charges in different years as follows:-

1.6. The Board observed that the advertisement charges are required to be included in view of the Apex Court Judgement in the case of M/s. Bombay Tyre International Ltd. Vs. Union of India reported in 1983:ELT:1896. It goes on to observe that if the advertisement expenses as mentioned above, are included in the clearance value of the Aerated Waters declared by the respondents, the limit of Rs. 15.00 lakhs stipulated in the exemption Notifications mentioned above, would be crossed in some years. Therefore, the respondents would not be eligible for the benefit of the said Notification Nos. 80/80 and 148/82. Hence this appeal before us, by virtue of an application moved under Section 35E by the Commissioner of Central Excise, Shillong, on the direction of the Board.

2. We have heard the learned J.D.R., Shri R.K. Roy for the Revenue. We accept in principle the observation of the C.B.E.C. that the advertisement expenses are required to be included in the assessable value of