- (1.) Present Writ Petition is being filed challenging the order of the Commissioner (Appeals), Customs and Central Excise, Meerut-II passed on the application under Section 35F of the Central Excise Act (hereinafter referred to as "Act"). Petitioner is engaged in the manufacture of various excisable goods namely, Portable Gen sets, IC Engines, P.D. Pump sets and parts thereof falling under Chapter Heading Nos. 85.02, 84.08, 84.13 and 84.13 of the first schedule to the Central Excise Tariff Act, 1985. Petitioner has reimbursed the expenses towards advertisement and publicity made by the dealer/distributors as per the declared policy. The adjudicating authority has added the value of the advertisement and publicity which has been reimbursed by the petitioner to the dealer/distributors in assessable value and demanded the duty thereon. Apart from demanding the duty adjudicating authority also levied the penalty of the equal amount. Being aggrieved by the order of the adjudicating authority an appeal was filed before the Commissioner (Appeals) Customs and Central Excise, Meerut-II along with an application under Section 35F of the Act. Commissioner (Appeals), Customs and Central Excise. Meerut-II vide impugned order waived the deposit of the amount of penalty but has directed the petitioner to deposit the duty amounting to Rs. 20,61,226/- within a period of one month from the date of receipt of the order. Heard Sri Madhav Rao, learned counsel for the petitioner and Sri Suyash Agarwal, learned counsel appearing on behalf of the respondents.
(2.) Learned counsel for the petitioner submitted that following the decision of the Apex Court in the case of Philips India Limited v CCE, Pune, 1997 91 ELT 540 and CCE, Pondichery V/s. ACER India Limited, 2004 172 ELT 289. Tribunal in number of cases has held that the advertisement expenses incurred by the dealer/distributors which has been reimbursed by the manufacturing company is not the part of assessable value. He has given the reference of the order of the Tribunal in the cases of Featherlite Products (P) Ltd. V/s. CCE,2005 191 ELT 487 and the decision of the Tribunal dated 24-5-2005 in Appeal No. 629 to 633 in the case of Swaraj Mazda Limited . He submitted that asking the petitioner to deposit the amount of duty will substantially effect the business of the petitioner, inasmuch as on the point in issue there are decisions of the Tribunal in favour of the petitioner and thus, prima facie case has been made out by the petitioner.
(3.) Having regard to the facts and circumstances of the case, Commissioner (Appeals) is directed to decide the appeal of the petitioner expeditiously within a period of two months from the date of filing of the certified coy of the order, which the petitioner undertakes to file within a period of ten days, without asking for deposit of any amount of duty. With the aforesaid observation, writ petition stands disposed of.;