Per Justice U.L. Bhat :

Order-in-original No. 40/90 dated 9.10.1990 passed by the Additional Collector of Central Excise, New Delhi, confirming demand of Rs. 71,690.50 under Rule 9 (2) of the Central Excise Rules, 1944 read with the proviso to Section 11A of the Central Excises Act, 1944 and imposing penalty of Rs. 5000.00 under Rule 173Q of the Rules, is under challenge in this appeal.

2. Appellant, manufacturer of aerated water concentrates and aerated waters of certain brand names entered into contract for supply of concentrate to various bottling companies and was supplying the same on payment of duty on invoice value, availing benefit under Notification No. 120/75. On scrutiny of invoices and other records, it was found that appellant had issued two sets of sale invoices for sale of concentrates with identical serial numbers, dates and description of buyers, one set of sale invoices showing the agreed price and the second set of sale invoices for the amount of "reimbursement of co-operative All India Advertisement". The receipt of such amounts towards advertisement was not shown in the sale invoices produced before the excise officers and no duty was paid thereon. These amounts also should be regarded as the price of the concentrates sold since the advertisement even of aerated waters with the brand name of the appellant improved the sales of concentrates and enhanced the marketability of concentrates. Appellant, availing benefit of Notification No. 120/75, was obliged to indicate the total price correctly in the invoices and to pay duty thereon. The information relating to such collection of amount in the name of advertisement was never divulged to the Department and there was wilful suppression of material information with intent to evade duty. It was also found that there was no advertisement or publicity for the concentrates of aerated waters. Show cause notice dated 1.8.1985 was accordingly issued in respect of the periods from 2.12.1983 to 27.12.1984 and 5.2.1985 to 14.3.1985 making the allegations as aforesaid and alleging adoption of a fraudulent device to evade duty and proposing demand of differential duty and imposition of penalty. Appellant resisted the notice on merits as well as on the ground of limitation. Overruling these contentions, the adjudicating authority confirmed the demand and imposed penalty.

3. Learned counsel for the appellant challenged the impugned order on merits as well as on the ground of limitation.

4. It is brought to our notice that in respect of an earlier period, the adjudicating authority passed order-in-original No. 68/88 dated 29.10.1984 against the appellant on account of separate collection of charges for advertisement of aerated waters from the buyers of concentrates. The Tribunal dismissed the appeal by final order No. 2119/96-A. This decision is seen reported in 1996 (15) RLT 685. We are told that the appellant has filed an appeal before the Supreme Court against this order and the same has been admitted, though no order of stay has been passed. In these circumstances, we are obliged to follow the earlier decision.

5. The Tribunal in the above case followed another decision of a three-Member Bench of the Tribunal in the case of Pepsi Foods Ltd., 1996 (82) ELT 33 (T). In that case the manufacturer of concentrates was incurring expenditure for advertisement and publicity not of the concentrates but of the aerated waters manufactured by the buyers of concentrates using the brand name of the appellant. However, the appellant therein was not collecting any amount from the buyers of concentrates towards share of advertisement and publicity expenses. The Bench by a majority (Shri P.K. Desai, Member Judicial and Shri Lajja Ram, Member Technical) held that when the manufacturer of concentrates was advertising the aerated waters, he was advertising for himself and the advertisement enriched the value of concentrates and enhanced its marketability in the trade and the cost should form p