COMMISSIONER OF CENTRAL EXCISE, PUNEversusHINDUSTAN NATIONAL GLASS AND INDUSTRIES LIMITED

                            [2016] l S.C.R. 250



A           COMMISSIONER OF CENTRAL EXCISE, PUNE
                                     v.
    HINDUSTAN NATIONAL GLASS AND INDUSTRIES LIMITED
                       (Civil Appeal No.1829 of 2008)
                            JANUARY 14, 2016.
B
              [DIPAK MISRA AND N.V. RAMANA, JJ.]
         Central Excise Act, 1944 - Under Valuation - Short payment
  of duty - Manufacturers-assessee received advance from purchasers
  for the goods and was giving discount to the said companies -
  Non-addition of additional consideration received from customers
c in form of advance, thus, notional interest accrued thereon is to be
  added to sale price - Non-addition resulting in depression of
  assessable value of the goods - Demand raised by Adjudicating
  Authority being duty payable on the said additional consideration
  as also imposition of penalty - Appeal before tribunal - Tribunal
D held that the revenue had not been able to discharge the onus by
  adducing cogent material evidence that the advances obtained from
  buyer had been instrumental in depression of price; and that there
  was no nexus of interest with price, thus, the order of demand was
  not acceptable and no penalty could be levied - On appeal, held:
  Sale price agreed between two competing parties may get depressed,
E when substantial and huge advances are periodically extended and
  given with the objective and purpose that the sale price paid or
  charged would be lowered, to set off the consideration paid by grant
  of advances - There should be a connect and link between the two
  i.e. the money advanced it should be established was a consideration
F paid which could form the basis for depression of sale price -
  Evidence and material to establish the same should be placed on
  record - On facts, there has to be application of mind by the tribunal
  regard being had to the amount of money paid by purchasers, and
  what is the effect of the sales made to the two companies in percentile
  terms, whether this had the effect of depressing the sale price -
G Onus would be on the revenue - Revenue granted liberty to produce
  the documents to discharge the onus - Matter remitted to the tribunal
  for fresh disposal.
          Commissioner of Central Excise, New Delhi vs. Hero
          Honda Motors Ltd. (2005) 4 SCC 182:2005 (3)
H         SCR 588; Metal Box India Ltd. vs. Collector of Central
                                 250
  COMMNR. OF CENTRAL EXCISE, PUNE v. HINDUSTAN                                251
      NATIONAL GLASS AND INDUSTRIES LTD.

      Excise, Madras (1995) 2 SCC 90:1995 (1) SCR 136 -                       A
      referred to.
                         Case Law Reference
     2005 (3) SCR 588                      referred to.     Para 5
     1995 (1) SCR 136                      referred to.     Para 6
                                                                              B
      From the Judgment and Order No. A/637/20071C-ii(EB) dated
17 .09 .2007 of the Customs, Excise and Service Tax Appellate Tribunal,
West Zonal Bench in Appeal No. E/1104104.
     Yashank Adhyaru, Nisha Bagchi, A.K. Srivastava, Pooja Sharma,
B. Krishna Prasad for the Appellants.                                         c
     Aarohi Bhalla, Anlcit Singh, Sujata Kurdukar for the Respondents.
     The Order of the Court was delivered by
      DIPAK MISRA, J. 1. A show cause notice under F. No. Prevl
CEX/AEI/OBL/ 141/991797 dated 16'" August, 2002, was issued to Ml             D
s. Owens Brockway (I) Pvt. Ltd., the predecessor-company of the
respondent which is presently known as Hindustan National Glass and
Industries Limited, by the Commissioner of Central Excise, Pune-I,
alleging that the manufacturing company was not adding the additional
consideration received from the customers in the form of advance and,
therefore, the notional interest accrued thereon is to be added to the sale   E
price, for such non-addition had resulted in depression of the assessable
value of the goods, namely, the bottles manufactured by the respondent-
assessee.
      2. In the show qmse notice, it was mentioned that the assessee
had short paid the duty on its products, that is, printed glass bottles, by   F
under-valuing the same at the time of clearance from its factory inasmuch
as it did not add "additional consideration" received from Mis. Coca
Cola India and Mis. Pepsico India Holdings Pvt. Ltd. The show cause
notice referred to the statement of the Manager (Sales) of the Company
from which it was discernible that the respondent-assessee had received
90% advance from Mis. Coca Cola India and 100% advance from Mis.              G
Pepsico India Holdings Pvt. Ltd. for the goods and it was giving 3-4%
discount to the said Companies.
      3. After the reply to the show cause was received, the adjudicating
authority passed an order on 28'' November, 2003, making a demand of
Rs. 33,91,934,001- under Section llA(l) of the Central Excise Act, 1944       H
252               SUPREME COURT REPORTS                          [2016] 1 S.C.R.


A     (for short "the Act") being the duty payable on the additional consideration
      received by the assessee from the customers in the form of notional
      interest accrued on advance payments and also imposed penalty for the
      same amount under Section llAC of the Act. Apart from that, the
      adjudicating authority confirmed certain other demands.
B           4. Being grieved by the aforesaid orderofthe adjudicating authority,
      the respondent-assessee preferred an appeal before the Customs, Excise
      and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for
      short, 'the tribunal'). Initially, the matter was heard by two Members
      consisting of Member (Judicial) and Member (Technical). The Member
      (Technical) came to hold that the revenue had not been able to discharge
C     the onus by adducing cogent material evidence that the advances obtained
      from a buyer had really been instrumental in depression of the price.
      Learned Member further opined that there was no nexus of interest
      with the price and hence, the demand was not acceptable and
      consequently, no penalty could be levied.
D           5. The Member (Judicial) adverted to the order passed by the
      Commissioner wherein the statement of the Manager (Sales) had been
      adumbrated in detail, referred to the other documents that had been put-
      forth by the revenue before the adjudicating authority and in course of
      discussion adverted to the principle stated in Commissioner of Central
E     Excise, New Delhi vs. Hero Honda Motors Ltd.' and opined as follows:
             "In view of the above decision, I am of the opinion that the matter
             needs to be remanded to the Commissioner for fresh examination
             in the light of the observation made by the Hon'ble Supreme Court
             in the case of Hero Honda Motors Ltd. vs. CCE referred supra
             and after examining the entire aspect of the use of the advances,
 F
             income generated from the said advances, their contribution of
             the pricing structure and their reflection in the Balance-sheet or
             the Annual Reports of the appellants, and the deployment of the
             funds so received by them, as I agree with the learned brother
             Shri Sekhon that onus to prove so is on the Revenue. However,
G            the appellants would be at liberty to produce relevant evidences
             before the adjudicating authority in support of their contention
             that the interest accrued on such advances have not in any way
             resulted in depreciation of the price. All other issues are left open
             for the appellants to address before the adjudicating authority."
H     1(2005) 4 sec 1s2
 COMMNR. OF CENTRAL EXCISE, PUNE v. HINDUSTAN                                   253
NATIONAL GLASS AND INDUSTRIES LTD.[DIPAK MISRA, J.]

      6. As there was di(ference of opinion, the matter was referred to         A
the third Member and the third Member, who was a Judicial Member,
vide order dated 29"' August, 2007, cogitated on the concept of assessable
value under the Act, the concept of two prices and eventually opined
that the decisions in Hero Honda Motors Ltd. (supra) and Metal Box
India Ltd. vs. Collector of Central Excise, Madras' are not applicable          B
to the case at hand and accordingly concurred with the opinion expressed
by the Member (Technical). Hence, the revenue is before this Court in
appeal.
      7. We have heard Mr. Yashank Adhyaru, learned senior counsel
for the appellant-revenue and Mr. Aarohi Bhalla, learned counsel for the
respondent-assessee.                                                            C
       8. On a scrutiny of the factual score, it is noticeable that the
respondent-assessee had obtained certain advance sums from some
companies/users to supply the bottles and on that count it had granted 3-
4 per cent discount. Though the quantum had not been stated precisely,
yet it has been found as a matter of fact that Mis. Coca Cola India and         D
Mis. Pepsico India Holdings Pvt. Ltd. had given advances for 90% and
100% respectively for their purchases.
      9. In Metal Box India Ltd. (supra), the Court while dealing with
the transaction between the appellant therein and Mis. Ponds (I) Ltd.,
who was a whole-sale buyer of the appellant's goods, had accepted the           E
view of the tribunal and expressed thus:
      "On the facts on record, therefore, it must be held that the Tribunal
      was perfectly justified in taking the view that charging a separate
      price for the metal containers supplied to Mis Ponds (I) Limited
      could not stand justified under Section 4(l)(a) proviso and,              F
      therefore, to that separate price charged from the Ponds (I) Limited,
      the extent of benefit obtained by the assessee on interest-free
      loan was required to be reloaded by hiking the price charged from
      Mis. Ponds (I) Limited to that extent. Contention 2 also, therefore,
      fails and is rejected."                                                   G
      10. In Hero Honda Motors Ltd. (supra), the question that arose
for determination is whether receipt of advance and the income accruing
thereon, had gone towards the depreciation of the sale price. In that
context, the Court opined that there is conspectus of decisions which
clearly establish that inclusion of notional interest in the assessable value   H
2(1995) 2 sec 90
254               SUPREME COURT REPORTS                          [2016] 1 S.C.R.



A     or wholesale price will depend upon the facts of each case. The three-
      Judge Bench adverted to the facts of the case, the agreement existing
      between the parties and the lower price at which the respondent-assessee
      therein had sold the motor-cycles and after analysing the factual matrix
      opined as follows:
B           "For the above reasons, we hold that the tribunal has disposed of
            the appeal before it in a most perfunctory manner without going
            into any figures at all but by merely on the statement made by
            counsel and on the basis of material which appears to have been
            produced first time before the tribunal. We, therefore, set aside
            the order of the tribunal and remand the matter back to the tribunal.
c           The tribunal will consider in detail, if necessary, by taking the help
            of a Cost Accountant and after looking into the accounts of the
            respondent whether or not the advances or any part thereof have
            been used in the working capital and whether or not the advances
            received by the respondent and/or the interest earned thereon
D           have been used in the working capital and/or whether it has the
            effect of reducing the price of the motorcycle. The tribunal to so
            decide on the material which was placed before the Commissioner
            and not to allow any additional documents/materials to be filed
            before it. None of our observations made herein shall bind the
            tribunal to which this case is remitted."
E
            11. In the case at hand, the Member (Judicial) has remitted the
      matter to the competent authority to deal with it afresh in the light of the
      decision rendered in Hero Honda Motors Ltd. (supra).
            12. Mr. Aarohi Bhalla, learned counsel for the respondent-assessee
      would submit that when no evidence was adduced by the revenue at
 F    any point of time and the law is settled that the onus is on the revenue to
      establish that there has been depression of assessable value, the majority
      view of the tribunal cannot be found fault with.
            13. Mr. Yashank Adhyaru, learned senior counsel appearing for
      the appellant-revenue would submit that the documents were produced
G     before the adjudicating authority as well as the tribunal to show the
      nature of advance and the manner of transaction from which it is
      demonstrable that there has been depression of the assessable value.
            14. On a perusal of the order passed by the Commissioner, it is
      seen that observations have been made on certain aspects and inferences
      have been drawn. It cannot be said that no material was produced by
H
      the revenue. The concerned Commissioner has taken note of the
 COMMNR. OF CENTRAL EXCISE, PUNE v. HINDUSTAN                                  255
NATIONAL GLASS AND INDUSTRIES LTD.[DIPAK MISRA, J.]

statement made by the Manager (Sales) of the assessee-Company. An              A
aspect raised relates to percentage of total sales made to two companies,
but the core issue is whether there was a depression of the sale price on
account of receipt of advance. In the case of Metal Box India Ud.
(supra), the facts were extremely clear as there was an agreement that
Mis. Ponds (I) Ltd. had given 50% advance with a stipulation that it
                                                                               B
would purchase 90% of the manufactured goods. !twas a case where
a separate price was charged. In the case of Hero Honda Motors lid.
(supra), the facts, as we perceive, were not clear and, therefore, there
was a remit. Be it noted, sale price agreed between two competing
parties may get depressed, when substantial and huge advances are
periodically extended and given with the objective and purpose that the        c
sale price paid or charged would be lowered, to set off the consideration
paid by grant of advances. There should be a connect and link between
the two i.e. the money advanced it should be established was a
consideration paid which could form the basis for depression of sale
price. Evidence and material to establish the said factual matrix has to
                                                                               D
be uncovered and brought on record to connect and link the sale price
paid on paper and the "other" consideration, not gratis, but by way of
interest free advances.
      15. In our considered opinion, in the present case, there has to be
application of mind by the tribunal regard being had to the amount of
money paid by purchasers, namely, Mis. Coca Cola India and Mis. Pepsico        E
India Holdings Pvt. Ltd. and what is the effect of the sales made to the
two companies in percentile terms, whether this had the effect of
depressing the sale price. The onus would be on the revenue. That
being the thrust of the matter, liberty is granted to the revenue to produce
the documents in this regard to discharge the onus. As we are remitting        F
the matter, we may note one submission of the respondent-assessee. It
is urged by the learned counsel that when the entire activities were
within the knowledge of the excise authorities, penalty is not leviable.
Needless to emphasize, the tribunal shall advert to the said submission, if
required, in the ultimate eventuate, in proper perspective.
      16. In the result, the appeal is allowed, the order passed by the        G
tribunal is set aside and the matter is remitted to the tribunal for fresh
disposal keeping in view the observations made herein-above. We may
hasten to clarify that we have not expressed any opinion on any of the
aspects. There shall be no order as to costs.
Nidhi Jain                                                  Appeal allowed.    H