VENKATESH BEVERAGES LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) APPELLANT is absent in spite of notice of hearing, but has sent a request for decision of the appeal on merits. We have heard Shri K. Srivastava, SDR and perused the papers. Shri K.V. Swaminathan, Consultant assisted us.

(2.) APPELLANT , engaged in the manufacture of fruit drinks, was filing price lists from time to time and on approval thereof clearing the goods on payment of appropriate duty. The dispute in this appeal relates to the period from January 1989 to March 1989.

(3.) ON scrutiny of the invoices it was noticed that appellant was charging separately for straw supplied along with each container but had not included the cost of the straw in the declared assessable value of which approval had been sought and obtained. Accordingly show cause notice dated 8 -8 -1991 was issued referring to the result of investigation and alleging suppression of facts with intent to evade duty and invoking larger period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944. Appellant resisted the notice contending that the straw was not an integral or component part of the carton of fruit drink, that straw is supplied only at the option of the wholesale buyers, that in many instances wholesale buyers do not require supply of straw and in those cases straw is not supplied. It was also contended that every retail carton contains an indication that it could be either consumed using the straw after piercing the hole at the designated place or by slitting the top of the carton at the designated place and pouring out the contents. Collector of Central Excise overruled these contentions and held that the value of the straw would be part of assessable value of cartons of fruit drink sold to wholesale buyers and confirmed the demand proposed in the show cause notice and imposed penalty of Rs. 3000. This order is now challenged.