COMMISSIONER OF CENTRAL EXCISE, NAGPUR-IversusM/S. INDORAMA SYNTHETICS (I) LTD.

                    [2015] 11S.C.R.513


   COMMISSIONER OF CENTRAL EXCISE, NAGPUR-I                      A
                              v..
          M/S. INDORAMASYNTHETICS (I) LTD.
               (Civil Appeal No.1834 of 2006)
                                                                 B
                     AUGUST 25, 2015
           [A.K. SIKRI AND R. F. NARIMAN, JJ.]
      Central Excise Act, 1944: s.4 - Transaction value -
Goods cleared as deemed export to advance licence holders c·
at a price lower than what was being charged to the other
buyers who did not hold advance licence - Additional ,
consideration received by the assessee on surrender of
advance licence by the buyers - Inclusion of, in the
transaction value - Held: Additional monetary consideration, D
in addition to· the price being paid for the goods, i.e. transfer
of advance import licence in favour of the ·seller by the
buyer enabling the seller of the goods to effect duty free
import of .the raw materials and bringing down the cost of
production/procurement, is a consideration, the monetary E
value of which has to be included in the transaction value
under the provisions of the Rules, i.e. Rule 6 thereof- Central
Excise Valuation (Determination of Price of Excisable Goods)
Rule, 2000 - r. 6.
                                                                  F
       Allowing the appeal, the Court

     HELD: 1. As is clear from the reading of Section 4,
the duty of excise is chargeable on the excisable goods
with reference to the value of such goods. Generally, G
the price of the goods, i.e. the price . at which such
goods are ordinarily sold by'the assessee to a buyer is
to be the value of the goods. This value is called the
'transaction value'. Rule 6 of the Rules specifies that if
the goods are sold in the circumstances specified in H
                             513
514        SUPREME COURT REPORTS               [2015] 11 S.C.R.


A  clause (a) of sub-section (1) of Section 4, then the value
   of such goods shall be deemed to be the aggregate of
   such transaction value plus the 'amount of money value
   of any additional consideration flowing directly or
   indirectly from the buyer to the assessee'. The
 B implication of this Rule is that any form of additional
   consideration which flows from the buyer to the
   assessee, monitory value thereof is to be included while
   arriving at the transaction value. It is not necessary that
   such an additional consideration is to flow directly
 C and even indirect consideration is includible. [Paras 9,
   1O] [522-D-G; 524-B-C]
 '           2. In the instant case, the issuance of advance
      licence for intermediate. supply to the assessee was
 D    facilitated as a result of surrender of advance licence by
      the buyer. Thus, getting the licence invalidated for direct
      import of items in favour of the buyer was the trigger
      point for issuance of the advance licence for
      intermediate supply in favour of the assessee. The
 E    assessee got the licence and it became possible only
      on account of sacrifice made by the buyers. Further,
      the buyers got their advance licences for direct import
      in their favour invalidated with the sole purpose of
      purchasing the polyester staple fiber from the assessee
 F    at lesser price, i.e. Rs.37.50 per kg. Therefore, the
      argument of the assessee that benefit in the form of
      imports without payment of duty flows to the assessee
      only pursuant to and based on licence issued by DGFT
      to the assessee and does not flow from the invalidation
 G    letter received by the customer from DGFT cannot be
      accepted. [Para 12] 525-B-E]
           /FGL Refractories Ltd. v. Commissioner of Central
           Excise, Bhubaneswar-112001 (134) ELT 230 - relied
 H         on.
  COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                   515
         INDORAMASYNTHETICS (I) LTD.

     Commissioner of Central Excise, Bangalore v. A
     Mazagon Dock Ltd. 2005 (187) ELT 3 (SC): 2005 (127)
     ECR 268 (SC) - held inapplicable.

     Commissioner of Central Excise, Bhubaneswar- II v.
     IFGL Refractories Ltd. 2005 (2) Suppl. SCR 480:           B
     (2005) 6 SCC 713; Thomas v. Thomas (1842) 2 QB
     851; Re Soames (1897) 13 TLR 439 - referred to.

                  Case Law Reference

2001 (134) ELT 230           relied on.         Para 2         c
2005 (2) Suppl. SCR 480      referred to.       Para 3, 15

(1842) 2 QB 851              referred to.       Para 15
                                                               D
(1897) 13 TLR 439            referred to.       Para 16

2005 (127) ECR 268 (SC)      held inapplicable.Para 21,22

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1834 of 2006                                                   E

        From the Judgment and Order dated 12. 07.2005 of the
Customs, Excise and Service Tax Appellate Tribunal, West
Zonal Bench at Mumbai in Final Order No. A/1417/WZB/2005/
Ill in Appeal No. E/1318/04 Mum                                F

     A. K. Panda, T.C. Sharma, Bipin B. Singh, B. Krishna
Prasad for the Appellant.

     V. Lakshmikumaran, M.P. Devanath, Vivek Sharma, L.
Charanaya,Aditya Bhattacharya, R. Ramachandran, Hemant G
Bajaj,Anandh K., Praveen Kumarforthe Respondent.

     The Judgment of the Court was delivered by

                                                               H
516       SUPREME COURT REPORTS                 [2015] 11 S.C.R.


A       A.K. SIKRI, J. 1. The respondent (hereinafter referred
  to as the 'assessee') ·is engaged in the manufacture of
  polyester chips, polyester staple fibre, polyester filament yarn
  and other goods. It had been clearing the same on payment
  of central excise duty. The period involved in this appeal is
B 1999-2002. During this period, the goods that were cleared
  as 'deemed exports' to advance licence holders were at a
  price lower than what was being charged to the other buyers
  who did not hold an advance licence. As per the Commissioner
  of Central Excise, Nagpur-I (hereinafter referred to as the
C 'Revenue'}, it found that the reason for selling the goods to the
  aforesaid particular class of buyers at a lesser price was that
  the assessee had received 'additional consideration' and,
  therefore, its inclusion was necessitated having regard to the
D formula provided for arriving at the 'transaction value'
  contained in the statutory scheme.

        2. We would narrate the details of purported 'additional
  consideration' at a later point of time at an appropriate stage.
  However, we may point out here that on surrender of advance
E licence with the aforesaid buyers, the assessee could receive
  drawback from the Government/Director General of Foreign .
  Trade (DGFT) as per the Export-Import (EXIM) Policy and this
  was stated to be the additional consideration. Suffice it to
F point out at this juncture that the Revenue issued five separate
  show cause notices asking the assessee to pay the differential
  duty as the said addition~! consideration was to be included
  while arriving at the 'transaction value' of the said goods in
  terms of Section 4 of the Central Excise Act, 1944 (hereinafter
G referred to as the 'Act') read with Rule 6 of the Central Excise
  ValuatiGn (Determination of Price of Excisable Goods) Rules,
  2000 (hereinafter referred to as the 'Rules'). The assessee
  challenged the stand of the Revenue by filing replies. After
  examining the matter, the Commissioner took the view that
H price was not the sole consideration flowing from the buyer to
     COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                        517
       INDORAMASYNTHETICS (I) LTD. [A.K. SIKRI, J.]

the assessee. Not only such buyers, who were sold the goods            A
at a lower price, were 'related persons', even the goods were
sold at depressed price. Therefore, the Commissioner
confirmed the demand of differential duty as mentioned in the
show cause notices and also levied penalties and interest.
The assessee challenged the order of the Commissioner by               B
filing appeal before the Custom Excise & Service TaxAppellate
Tribunal (for short, the Tribunal') taking the plea that 'additional
consideration' under Section 4 of the Act refers only to the
additional consideration flowing from the buyer to the
assessee and in the present case no such additional                    C
consideration flew from the advance licence buyers of the
'deemed exports'. The Tribunal, in arriving at this conclusion,
relied upon its own decision in the case of IFGL Refractories
Ltd. v. Commissioner of Central Excise, Bhubaneswar-
                                                                       0
111 wherein it was held that statutory benefits allowed by
statutory authorities cannot be considered as additional
consideration flowing to a manufacturer from the buyer. In the
opinion of the Tribunal, the drawback was received from the
Government and not from the buyers and, therefore, such                E
drawback could not be treated as additional consideration for
the purpose of arriving at 'transa~tion value' as per the
definition thereof under Section 4 of the Act.

      3. Pertinently, the decision of the Tribunal in IFGL's case F
stands overruled by this Court in Commissioner of Central
Excise, Bhubaneswar- II v. IFGL Refractories Ltd. 2 In the
said case, this Court has held such a consideration, namely,
duty drawback, to be the 'additional consideration' inasmuch
as the benefit of duty drawback accruing to the seller was the G
result of surrender of advance licence by the buyers. The
discussion and the rationale which goes into forming the

1
    2001 (134) ELT 230
2
    (2005) 6 sec 713                                                   H
518         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A     aforesaid opinion is contained in para 9 of the judgment, which
      reads as under:

            "9. Ultimately it was agreed that Mis. Visakhapatnam
           will surrender its advance licences and in lieu thereof the
B           respondents will get the advance intermediate licences.
           Thus, without the advance licences of M/s.
           Visakhapatnam Steel Plant, being made available to the
            respondents, the prices .would have been as were quoted
           earlier. It is only because of the advance licences being
c          surrendered by M/s. Visakhapatnam Steel Plant and in
            lieu thereof advance intermediate licences being made
           available to the respondents that the respondents could
           offer lower prices. The surrendering of licences by M/s.
           Visakhapatnam Steel Plant and as a result thereof the
D          respondents getting the licences had nothing to do with
           any Import and Export Policy. It was directly a matter of
           contract between the two parties. This resulted in
           additional consideration by way of "advance intermediate
           licence" flowing from M/s. Visakhapatnam Steel Plant to
E          the respondents. The value received therefrom is
           includible in the price. The Tribunal was wrong in stating
           that such an arrangement can never be placed upon the
           platform of additional consideration. In so stating the
           Tribunal has ignored and/or lost sight of the fact that it
F
           was in pursuance of the contract of sale between the
           respondents and M/s. Visakhapatnam Steel Plant that
           the licences were made available to the respondents.
           The Export and Import Policy had nothing to do with the
G          arrangements/contract under which the licences flowed
           from the buyer to the seller. At the cos~ of repetition it
           must be mentioned that had the respondents had
           advance intermediate licence on their own i.e. without
           M/s. Visakhapatnam Steel Plant having to surrender its
H          licences for the purposes of the contract, then the
    COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                          519
      INDORAMASYNTHETICS (I) LTD. [A.K. SIKRI, J.]

        reasoning of the Tribunal may have been correct. But            A
        here, in pursuance of the contract of sale, there is directly
        a flow of additional consideration from the buyer to the
        seller. The value thereof has to be added to the price.
        We are thus unable to accept the broad submission that
        where parties take advantage of policies of the                 B
        Government and the benefits flowing therefrom, then such
        benefit cannot be said to be an "additional
        consideration".

      4. In a matter like this, this Court could simply follow the C
aforesaid judgment and set aside the order of the Tribunal,
allowing this appeal. Howev~r. Mr. V. Lakshmikumaran,
learned counsel appearing for the assessee, made a fervent
and passionate plea that the aforesaid judgment of this Court
in /FGL's3 case needs re-consideration. He, thus, pleaded D
for referring the matter to a larger Bench. Detailed and
elaborate submissions were made in this direction which were
stoutly refuted by the.learned counsel for the Revenue. We
may immed.iately record that the assessee's counsel has not
succeeded in persuading us to refer the matter to a larger E
Bench. Hereinafter, we record our reasons for taking this view.
Forthis purpose, we may first state at this stage the mechanism
that goes into getting the benefit of duty drawback in the kitty
of the assessee.
                                                                   F
       5. As mentioned above, the assessee had been selling
polyester staple fiber to two cl~sses of domestic buyers, in
addition to exporting the same in the international market. One
of the category of domestic buyers were those who were having
advance licence and the other category without any such G
licence. The assessee had issued two different price lists.
Those buyers who had advance licence but agreed to
surrender the said licence, were offered price of 1 37. 50 per
3
    Note 2 above                                                        H
520         SUPREME COURT REPORTS                  [2015) 11 S.C.R.


A     kg. Other category, with no such licence, were sold the goods
      at 1 50 per kg. As per the assessee, it was exporting polyester
      staple fiber during the relevant period at an average price of 1
      36 per kg against its own advance licence for exports.

B           6.Advance licence is issued under the EXIM Policy. The
      holder of the advance licence could procure imported raw
      material against the said licence for manufacture of finished
      goods. However, as per para 7. 7 of the EXIM Policy 1997-
      2002, the advance licence holder intending to source the
C     materials from indigenous source in lieu of direct import had
      the option to source them against advance release orders
      denominated in foreign exchange/Indian rupees. In such a
      case, the licence was to be invalidated for direct import and
      permission in the form of ARO was to be issued entitling the
D     supplier of the goods the benefits of deemed export. Para
      10.2 of the EXIM Policy laid down the categories of supply
      which would be recorded as 'deemed exports' under the policy.
      The first such clause (a)was 'supply ofgoods against advance
      licence/OFRC under the duty exemption! remission scheme.
E     Under para 10.3, benefits for deemed exports were specified.
      Advance licence for intermediate supply/deemed export was
      specified as one of the benefits for deemed exports.

        7. The advance licence holder category buyers got their
 Flicences invalidated/surrendered. Thereafter, DGFT issued
  licence in favour of the assessee herein permitting it to procure
  the goods duty free from indigenous manufacturers and on
  the supply of this material to such buyers, treating the same as
  'deemed exports', thereby earning the benefits of duty
G drawback. Para 7.11 of the EXIM Policy facilitated this process
  and it reads as under:

           "7 .11 Advance Licence for Intermediate Supplies - The
           Advance Licence for intermediate supply shall be
H          considered by the licensing authority concerned. The
  COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                      521
    INDORAMASYNTHETICS (I) LTD. [AK. SIKRI, J.]

     Advance Licence for intermediate supply shall be issued A
     after making the licence invalid for direct import of items
     to be supplied by the intermediate manufacture. In such
     cases, a copy of the invalidation letter will be given to the
     licence holder and copy thereof will be sent to the ·
     intermediate supplier as well as the licensing authority B
     of the intermediate supplier as well as the licensing
     authority ofthe intermediate supplier. The licencee in
     such case has an option either to supply the intermediate
     product to holder of Advance Licence for physical
     exports/deemed exports or to export directly."                C

       8. The aforesaid narratives would demonstrate that the
assessee could get the duty drawback and it could happen
when advance licence holder category of buyers got their
advance licences invalidated thereby surrendering the benefits D
accrued under such advance licence. Issue for consideration
is as to whether it would constitute 'additional consideration'
received by the assessee as per the definition of 'transaction
value' contained in Section 4 of the Act read with Rule 6 of the
Rules. We, therefore, shall reproduce the relevant portion of E
the provisions of Section 4 whic.h existed at the material time,
which read as under:

     "4. Valuation of excisable goods for purposes of
     charging of duty of excise. - (1) Where under this           F
    ·Act, the duty of excise is chargeable on any excisable
     goods with reference to their value, then, on each removal
     of the goods, such value shall-
     (a) in a case where the goods are sold by the assessee,      G
     for delivery at the time and place of the removal, the
     assessee and the buyer of the goods are not related and
     the price is the sole consideration for the sale, be the
     transaction value.
     xx              xx             xx                            H
522         SUPREME COURT REPORTS                   [2015) 11 S.C.R.


A          (d) "transaction value" means the price actually paid or
           payable for the goods, when sold, and includes in
           addition to the amount charged as price, any amount that
           the buyer is liable to pay to, or on behalf of, the assessee,
           by reason of, or !n connection with the sale, whether
 B         payable at the time of the sale or at any other time,
           including, but not limited to, any amount charged for, or
           to make provision for, advertising or publicity, marketing
           and selling organization expenses, storage, outward
           handling, servicing, warranty, commission or any other
c          matter; but does not include the amount of duty of excise,
           sales tax and other taxes, if any, actually paid or actually
           payable on such goods."

            9. As is clear from the reading of the aforesaid provision,
D     the duty of excise is chargeable on the excisable goods with
      reference to the value of such goods. Generally, the price of
      the goods, i.e. the price at which such goods are ordinarily
      sold by the assessee to a buyer is to be the value of the goods.
      This value is called the 'transaction value'. The Central
E     Government has also framed the Rules which, inter alia, lay
      down the provisions for determination of value. Rule 6 thereof,
      with which we are specifically concerned, reads as under:

           "RULE 6. Where the excisable goods are sold in the
 F         circumstances specified in clause (a) of sub section (1)
           of section 4 of the Act except the circumstance where
           the price is not the sole consideration for sale, the value
           of such goods shall be deemed to be the aggregate of
           such transaction value and the amount of money value of
G          any additional consideration flowing directly or indirectly
           from the buyer to the assesses.

           Explanation. - For removal of doubts, it is hereby ctarified
           that the value, apportioned as appropriate, of the following
H          goods and services, whether supplied directly or
  COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                     523
    INDORAMASYNTHETICS (I) LTD. [A.K. SIKRI, J.]

     indirectly by the buyer fre~ of charge or at reduced cost A
     for.use in connection with the production and sale of such
     goods, to the extent that such value has not been includ~
     in the price actually paid or payable, shall be treated to
     be the amount of money value of additional consideration
     flowing directly or indirectly from the buyer to the B
     assessee in relation to sale of the goods being valued
     and aggregated accordingly, namely:

     (i) value of materials, components, parts and similar
     items relatable to such goods;                        C

     (ii) value of tools, dies, moulds, drawings, blue prints,
     technical maps and charts and similar items used in the
     production of such goods;
                                                                 D
     (iii) value of material consumed, including packaging
     materials, in the production of such goods;

     (iv) value of engineering, development, art work, design
     work and plans and sketches undertaken elsewhere than
     in the factory of production and necessary for the          E
     production of such goods."

       10. Even when these goods are sold by the assessee at
different prices to different classes of buyers (not being related
persons), each such price is to be deemed to be the normal F
price of such goods in relation to each class of buyers.
However, as per the definition of 'transaction value' contained
in this very section, i.e. Section 4(3)(d), certain charges can
be ad~ed to the price at which the goods are actually sold,
under certain circumstances. These include the provision for G
advertising or publicity, marketing and selling organization
expenses, storage, outward handling, servicing, warranty
commission etc. In the present case, we are not concerned
with this aspect. However, Rule 6 of the Rules specifies that if H
524            SUPREME COURT REPORTS                 [2015] 11 S.C.R.


A the goods are sold in the circumstances specified in clause
  (a) of sub-section (1) of Section 4, then the value of such goods
  shall be deemed to be the aggregate of such transaction value
  plus the 'amount of money value of any additional
  consideration flowing directly or indirectly from the buyer to
B the assessee'. The implication of this Rule is that any form of
  additional consideration which flows from the buyer to the
  assessee, monitory value thereof is to be included while arriving
  at the transaction value. It is not necessary that such an
  additional consideration is to flow directly and even indirect
C consideration is includible. It is in this context we have to
  examine as to whether the consideration in the form of
  drawback, which accrued in favour of the assessee, could be
  connected with the buyer. To put it otherwise, though the
  immediate source of tL0 dL~'/ drawback is the Government,
0
  whether its flow can be tra..: ,'."d L~•ck to the buyer? If it is so, it
  aybecome a case of indirect ccnsideration coming from the
  buyer and can be added to the transaction value.

         11. In the case of IFGL 4 , this Court has given the answer
E in the affirmative to the aforesaid issue. It is also conceded by
  the learned counsel appearing for the assessee that the said
  judgment was rendered on almost identical fact situation. That
  is why the endeavour of Mr. Lakshmikumaran is to impress
F upon us to take a different view. He sought t.o discredit the
  opinion of the Court in the said case by arguing that the
  advance licence for intermediate supply was granted by the
  DGFT to the assessee under the EXIM Policy and it had
  nothing to do with the buyer.· He conceded that it could happen
G only after buyers got their advance licences invalidated. But
  his explanation was that it was not necessary that such a
  licence could be issued to the assessee merely because the
  advance licence in favour of the buyer was invalidated. He

H     4
          Note 2 above
   COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                     525
     INDORAMASYNTHETICS (I) LTD. [A.K. SIKRI, J.] ·

 emphasized that DGFT could still refuse to issue the advance      A
 licence for intermediate supply to the assessee.

       12. This argument does not convince us at all. Fact
 remains that the issuance of advance licence for intermediate
 supply to the assessee was facilitated as a result of surrender B
 of advance licence in favour or the buyer by the buyer. Thus,
 getting the licence invalidated for direct import of items in
 favour of the buyer was the trigger point for issuance of the
 advance licence for intermediate supply in favour of the
 assessee. Possibility of refusal on the part of DGFT to issue C
 licence in favour of the assessee is only in the realm of
 conjecture. Fact is that the assessee got the licence and it
 became possible only on account of sacrifice made by the
 buyers. Further, what is important is that the buyers got their
 advance licences for direct import in their favour invalidated D
 with the sole purpose of purchasing the polyester staple fiber
 from the assessee at lesser price, i.e. 1 37.50 per kg.
 Therefore, the argument of the assessee that benefit in the
 form of imports without payment of duty flows to the assessee
 only pursuant to and based on licence issued by DGFT to the E
 assessee and does not flow from the invalidation letter received
 by the customer from DGFT is too ingenuous an argument to
 be accepted.

         13. Another argument which was advanced by the learned F
  counsel for the assessee was that discounted price is charged
  from the advance licence holder category of buyers by the
  assessee because of saving in customs duty on inputs due to
  statutory notification with consequent reduction in cost of
. production and, therefore, it is not a consideration flowing from G
  a buyer. In this behalf, the submission was that the customs
  duty, otherwise leviable on the inputs going into the manufacture
  of polyester staple fiber, is exempted by the statutory
  notification issued by the Central Government, being H
526             SUPREME COURT REPORTS               [2015] 11 S.C.R.


A     Notification No. 31/1997-CUS, and it is because of the benefit
      availed by the assessee under this Notification that it is able
      to effect supply of polyester staple fiber on discounted price to
      an ultimate exporter holding advance licence. Therefore, the
      additional discount offered to a customer, who is the exporter,
B     is never an additional consideration.

        14 .. The aforesaid argument of the learned counsel for
  the assessee may appear to be impressive, when taken in
  isolation i.e, without having regard to all the attending facts.
C However, when the argument is tested keeping in view the
  entirety of the circumstances, as already taken note of above,
  the hollowness of this argument stands exposed, inasmuch
  as, this argument glosses over the fundamental fact that the
  assessee had been able to get the benefit of Notification No.
D 31/1997-CUS based on licence issued by DGFT in its favour
  and the raison d'etre for' issuance of said licence by the DGFT
  to the assessee was invalidation of the advance licence by
  the buyers. Therefore, the source or gangotrifrom where the
  benefit has ultimately reached the assessee is the advance
E licences which were held by the buyers and their act of
  invalidation made it possible to flow down the benefit so as to
  reach the stream of the assessee.

        15. Yet another argument which was raised by Mr.
F Lakshmikumaran was that carving out this category of buyers,
  namely, those who are/were the holders of advance licence,
  to be eligible for purchase at a discounted price was only a
  'condition for sale of goods' put forth by the assessee. He
  submitted that 'it was not a consideration for sale of goods'.
G He, thus, drew distinction between condition for sale and
  consideration for sale of goods and in support of this
  submission referred to the celebrated and classic judgment
  of the English Court in Thomas v. Thomas 5 . This judgmant

H     5   (1842) 2 QB 851
   COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                        527
     INDORAMASYNTHETICS (I) LTD. [A.K. SIKRI, J.]

  has been analysed by Chitty on Contracts (31•t Edition -           A
  Volume I) and Mr. Lakshmikumaran made the said analysis
  as part of his submission. That was a case where a testator,
  shortly before his death, expressed a desire that his widow
  should, during her life, have the house in which he lived, or
  £100. After his death, his executors 'in consideration of such     B
  desire' promised to convey the house to the widow during her
  life or for so long as she should continue a window, 'provided
  nevertheless and it is hereby further agreed' that she should
  pay £1 per annum towards the ground rent, and keep the house
  in repair. In an action by the widow for breach of this promise,   C
  the consideration for it was stated to be the widow's promise
  to pay and repair. An objection that the declaration omitted to
. state part of the consideration, viz. the testator's desire, was
  rejected. Patteson, J. said: 'Motive is not the same thing with
                                                                     0
  consideratien. Consideration means something which is of
  value in the eye of the law moving from the plaintiff'.
  Commenting upon the aforesaid remarks, Chitty observes:

      "This remark should not be misunderstood: a common
      motive for making a promise is the desire to obtain the E
      consideration; and an act or forbearance on the part of
      the promisee may (unless the court is prepared to "invent"
      a consideration) fail to c9nstitute consideration precisely
      because it was not the promiser's motive to secure it. F
      What Patteson J. meant was that a motive for promising
      did not amount to consideration unless two further
      requirements were satisfied, viz: (i) that the thing secured
      in exchange for the promise was "of some value in the
      eye of the law"; and (ii) that it moved from the plaintiff. G
      Consideration and motive are not opposites; the former
      concept is a subdivision of the latter. The consideration
      for a promise is (unless the consideration is nominal or
      invented) always a motive .for promising; but a motive for
      making a promise is not necessarily consideration for it H
528            SUPREME COURT REPORTS                 [2015] 11 S.C.R.


A             in law. Thus the testator's desire in Thomas v. Thomas
              was a motive for the executors' promise but not part of
              the consideration for it. The widow's promise to pay and
              repair was another motive for the executors' promise and
              did constitute the consideration for that promise."
 B
        16. From this very judgment, Chitty also explains the
  distinction between consideration and condition. According
  to him, the plaintiffs remaining a widow was not part of the
  consideration but a condition· of her entitlement to enforce the
C executor's promise. This case is contrasted with another
  judgment in Re Soames6 • The discussion in this behalf reads
  as under:

               "On the other hand, in Re Soames A promised £3,000
D            · to B if B would set up a school in the running of which A
               was to have an active part. It was held that, by
               establishing the school, B had provided consideration
               for A's promise. It seems that the distinction between
               consideration and condition depends, in such cases, on
 E             whether "a reasonable man would or would not
               understand that the performance of the condition was
               requested as the price or exchange for the promise." In
               Thomas v. Thomas the executors had not requested the
               plaintiff to remain a widow; while in Re Soames a request
 F             by A that B should establish the school could be inferred
               from A's expressed intention to participate in its
               management. This distinction is further illustrated by
               Carlill v. Carbolic Smoke Ball Co. where the claimant
               provided consideration for the defendants' promise by
G              using the smoke-ball; but her catching influenza was a
               condition of her entitlement to enforce that promise."



 H    6
          (1897) 13 TLR 439
  COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                        529
    INDORAMASYNTHETIC$ (I) LTD. [A.K. SIKRI, J.]

      17. We are afraid, such a distinction between                 A
consideration and condition, as sought to be drawn by the
learned counsel for the assessee, would not apply to ttie instant
case. It was possible if the transaction between the buyers
and the assessee was seen in isolation. However, in the present
case, it needs to be emphasized at the cost of repetition that      B
the resultant effect of invalidating the advance licence by the
buyer was issuance of licence for intermediate supply in favour
of the assessee and the said licence enured certain benefits
in favour of the assessee. In the present case, on these facts,
we have to simply see as to whether the definition of               C
'transaction value', as contained in Section 4 of the Act read
with Rule 6 of the Rules, would encompass this benefit as
amounting to additional consideration. Our conclusion is that
it would come within the -ambit of additional consideration
                                                                    0
indirectly flowing from the buyers to the assessee. Therefore,
the instant case is more akin to the decision in Re Soames7 .

      18. At this stage, we would like to recall the following
findings arrived at by the Commissioner, which are not upset
by the Tribunal in the impugned decision or even disputed by        E
the assessee:

      (a) The assessee had supplied goods to a particular
      type of buyers at much lower price than the price charged
      from the general buyers in the normal course of trade as F
      it had obtained the facility of invalidating of advance
      licences from such buyers and procured imported raw
      material (duty free) against such licences for
      manufacturing offinished goods. It is, therefore, alleged
      that the assessee and the buyers had mutuality of interest G
      in the business of each other and there was a flow back



' Note 6 above.                                                     H
530       SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A        and the price was not the sole consideration for sale in
         these cases in accordance with the provisions of Section
         4(1)"(a) of the Act.

         (b) Therefore, they were related persons in terms of
 B       provisions of the erstwhile Section 4(4){c), presently
         Section 4(3)(b)(iv) of the Act.

         (c) It is observed that para 7.7 of the EXIM Policy on
         Advance Release Order speaks of mutuality of interest
c        as the assessee had procured duty free imported raw
         materials against invalidation of advance licence of the
         consignees and in turn it sold the finished goods to the
         said consignees at lower prices as compared to other
         normal buyers. Thus, the price was not the only
D        consideration.

         (d) Once the advance licence is invalidated, the said
         clearance to the buyers who were earlier holding the said
         licences need not be treated as deemed export and rightly
E        the assessee had cleared the said goods to such buyers
         on payment of excise duty, but at lower value than the
         clearance made to the normal buyers. Thus, the
         assessee appeared to have derived double benefits in
         these transactions, i.e. (i) enhanced sale and paid less
 F       duty on lower value; and (ii) imported duty free raw
         materials.

         (e) In this case, the right to procure duty free imported
         raw material is being transferred to supplier by the buyer.
G        This indicates the flow back of additional considerations
         from the buyer of the said goods to the seller, which is
         the assessee.

       19. On the facts of this ·case, we are of the opinion that
H the Commissioner has rightly come to the conclusion with
     COMMISSIONER OF CENTRAL EXCISE, NAGPUR-Iv.                       531
       INDORAMASYNTHETICS (I) LTD. [AK. SIKRI, J.]

regard to the fact that additional monetary consideration, in A
addition to the price being paid for the goods, i.e. transfer of
advance import licence in favour of the seller by the buyer
enabling the seller of the goods to effect duty free import of the
raw materials and bringing down the cost of production/
procurement, is a consideration, the monetary value of which B
has to be considered under the provisions of the Rules, i.e.
Rule 6 thereof.

     20. Thus, we do not see any reason to deviate from the
decision rendered by this Court in IFGL's8 case.                      C

      21. Before we part with, one more aspect to which our
attention was drawn by Mr. Lakshmikumaran needs to be
addressed. Referring to another judgment of this Court in
Commissioner of Central Excise, Bangalore v. Mazagon                  o
Dock Ltd. 9 , a vain attempt was made to show that this judgment
was contrary to the decision rendered by this Court in /FGL's 10
case. We do not find it to be so. Interestingly, the Hon'ble Judges
{S.N. Variava and Dr. AR Lakshmanan, JJ.} who comprised
the Bench that decided IFGL's case were the same who                  E
rendered the judgment in Mazagon Dock Ltd. 's case. Another
pertinent factor which is to be .taken note of is that the two
decisions were rendered within a short gap of a fortnight. The
decision in Mazagon Dock Ltd. was rendered on July 28,
2005 whereas IFGL's case was decided on August 09, 2005.              F
Thus, at the time of pronouncing of the judgment in IFGL's
case, the same very Bench was conscious of its judgment
       .
given immediately before in Mazagon Dock Ltd.

                                                                      G

8
    Note 2 above
9
    2005 (187) ELT 3 (SC):: 2005 (127) ECR 268 (SC)
10
     Note 2 above
                                                                      H
                                                              '   .
532             SUPREME COURT REPORTS             [2015] 11 S.C.R.


A       22. A reading of the judgment in Mazagon Dock Ltd. 's
  case would reveal that in the said case subsidy of 20% was
  received by the assessee therein from the Government, which
  was sought to be included by the Revenue as 'additional
  consideration'to arrive at the transaction value for the purpose
B of central excise. The Court held that this subsidy was not
  received from the buyer either directly or indirectly and,
  therefore, could not be included in the price of goods qua
  purpose of excise. On the facts of that case, the Court found
  that the respondent in the said case had entered into contract
C with Oil & Natural Gas Corporation Limited (ONGC) for
  manufacture and supply of jack-up rigs. For such a contract,
  as per the policy of the Government, 20% subsidy was to be
  received from the Government and 10% from ONGC. As far
  as 10% subsidy received from ONGC is concerned, the same.
D was also to be includible in the transaction value as additional
  consideration flowing from the buyer. However, 20% subsidy
  from the Government was under the Government's own scheme
  with no role of ONGC (buyer in the said case). Obviously, it
E could not be said that this subsidy had any flow from the ONGC
  either directly or indirectly. The said judgment, therefore, has
  no bearing on the present matter.

            23. In view of the foregoing, we are of the considered
F     opinion that this case is squarely covered by the judgment of
      this Court in /FGL's 11 case. We, thus, allow this appeal, set
      aside the decision of the Tribunal and restore the order passed
      by the Commissioner. In the facts and circumstances of this
      case, there shall be no order as to costs.
G     Devika Gujral                                    Appeal allowed.




      11
           Note 2 above