- (1.) The advertisement expenses incurred by the marketing agent of therespondent assessee are sought to be included in the assessable value of the respondent assessee's products on the ground that the respondent assessee and its marketing agent were related persons. We have today dismissed the appeal of the Revenue against that portion of the Tribunal's order by which it had held that the marketing agent and the respondent assessee were not related persons within the meaning of Section 4 of the Central Excises and salt Act, 1944.
(2.) In addition, we may note that the relevant clause in the agreementbetween the assessee and its marketing agent relating to advertisements reads as follows (wherein the marketing agent is referred to as BHPL) : "bhpl shall market the said product in the trade name or the trade mark of BCL in respect of the said product. BHPL may, at its own free will, make it known generally that the products of BCL are marketed by them. BHPL for this matter, may adopt such ways and means and may incur such expenses on advertising and business promotion as it may deem fit and necessary. At the same time, BHPL should ensure that it does not infringe or in any way prejudicially affect the trade name and/or trade mark of the said product. "
(3.) The appellant has sought to rely upon the decision of this Court in CCE v. Surat Textiles Mills Ltd. In that decision the Court appears to have upheld the view that where the advertisement cost is incurred by the manufacturers/customers compulsorily or mandatorily, and where the manufacturer has an enforceable legal right against the customers to insist on incurring of such advertisement expenditure by the customers, the advertisement cost would be includible in the assessable value. Without in any fashion affirming the view taken therein it is clear even on the basis of the judgment that the clause in question gave the manufacturers/marketing agent, the discretion whether or not to advertise the assessee's products. There was no "enforceable legal right" with the assessee to insist on the advertisement under the agreement. The appeal is, accordingly, dismissed.;