TaxTMI 
TaxTMI 
2016 (4) TMI 55
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....3(4) of TNGST Act and cash discounts and trade discounts and Pre Delivery Inspection (PDI) and Free Service Coupon (FSC). Accordingly, provisional assessment was ordered for financial years 1999 to 2004 05. The adjudicating authority finalized the provisional assessment with the respective Order-in-Original for the respective financial years and consequently demanded differential duty and also ordered for refund for the excess payment which is as under:- S. No. Appeal No. Order-in-Original No. and Date Period of finalization Amount of duty demanded (in Rs.) Amount of refund given to filing of separate refund claims 1. 70/07 (M-III) 8/2007 dt. 31.7.2007 1999-2000 56,88,204/- --- 2. 113/70 (M-III) 21/2007 dt. 27.9.2007 2000-2001 5,57,57,825/- 1,66,37,990/-A. Cess 98,851 3. 114/07 (M-III) 22/2007 dt. 27.9.2007 2001-2002 3,96,72,190/- A.Cess 3,09,939/- -- 4. 115/07 (M-III) 23/2007 dt. 27.9.2007 2002-2003 4,70,25,781/- A.Cess 3,39,414/- NCCD: 95,756 35,80,771/- A.Cess: 27,975/- NCCD 1,89,154/- 5. 116/07 (M-III) 24/2007 dt. 27.9.2007 2003-2004 2,06,23,453/- A.Cess: 1,61,211/- 20,80,190/- A.Cess: 16,251/- NCCD: 1,30,012/- 6. 113/08 (M-III) 19/2....
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....n the first issue, that is equalized freight, it is submitted that the issue pertaining to the period 1.7.2000 to 28.2.2003 where the vehicles are cleared from depot to dealers premises or from factory to dealers premises. He submits that as per section 4 of Central Excise Act, 1944 freight is to be excluded from the transaction value. Since the equalized freight will be known at a later date. Accordingly, they claimed deduction. Department disallowed the claim on the ground that it is not separately indicated in the invoice at the time of removal. He relied on the decision of the Tribunal in their own case vide Final Order No. 1860/2006 dated 3.11.2006. He has also relied on the following case laws for equalized freight:- (iv) The Indian Hume Pipe Co. Ltd. Vs. CCE -2005-TIOL-431-CESTAT-MUM (v) CCE Vs. Shreyans Industries 2013 (296) ELT 537 (vi) Reliance Cellulose Products Ltd. Vs. CCE -2006 (205) ELT 750 Cash Discount 7. He drew attention to page 48 of the Order-in-Appeal and explained the cash discount is for prompt payment whereas Department denied only on certain transaction where they have not proved that they have passed on the discount. He submits that they are not....
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.... case vide Final Order No. 25567 to 25569/2013 dated 8.7.2013 and submits that the Tribunal after considering the Hon'ble High Court's order in the case of TATA Motors Vs. Union of India - 2012 (286) ELT 161 (Bom.) allowed their appeal. The manner of finalization of provisional assessment:- 9. He drew attention to Order-in-Original where the adjudicating authority while finalizing the provisional assessment for each transaction and the Annexure to the Order-in-Original Volume - I Pages 1413 where he computed for each issue incurred, claimed and denied and arrived at the net for each discount. At the end of the working he has calculated individually the short paid value and excess paid value for each transaction and demanded duty on the short paid value and whatever the portion where he has allowed the discounts. He failed to adjust the amount instead passed the order and directed the assessee to claim refund subject to provisions. He relied on the decision of ACCE Vs. MRF Ltd. & Ors. -1987 (27) ELT 553 (SC). 10. On Revenue's appeal, in respect of deduction claimed under section 3 (4) of TNGST Act, he reiterated the findings of Order-in-Appeal at pages 46 & 47 and also he explain....
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....ragraphs 5, 6, 7 at page 4 of Revenue appeal and reiterated the grounds of appeal (iii), (iv), (v) and (vi) of Ground - I. He submits that the original authority has rightly disallowed and drew attention to Order-in-Original No. 21/2007 dated 27.9.2007 from pages 46 to 48 of the Revenue appeal. What is to be allowed is deduction only on sales tax paid on the finished goods whereas in the present case, the goods are transferred on stock transfer basis. There is no sale involved. He submits that the Commissioner (Appeals) has not discussed the findings of the adjudicating authority and also relied on the decision of the Tribunal in the case of CCE, Calcutta Vs. Khaitan Fans (P) Ltd. - 1986 (26) ELT 321. 13. On the second issue, i.e. trade discount, he reiterated the grounds of appeal - II and submits that the adjudicating authority has rightly disallowed the abatement of trade discount as discount was not declared at the time of removal of goods. He relied on the decision of the Hon'ble Supreme Court in the case of Govt. of India Vs. Madras Rubber Factory Ltd. - 1995 (77) ELT 433 (SC). 14. On the assessee's appeal, in respect of four issues, that is equalized freight cash discount ....
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....nst the findings of the Commissioner (Appeals) in the impugned order in appeal on the following issues: (i) The Commissioner (Appeals) should not have allowed on the abatement of tax paid under the provisions of section 3(4) of the TNGST Act as the said tax paid is not a sales tax on the final product. (ii) The Commissioner (Appeals) should have disallowed the abatement of trade discount as the same were not disclosed to the dealers at the time of prior to removal of goods. 21. The above grounds for appeal by both the sides are dealt with and the findings are given as below: APPELLANT / ASSESSEE GROUNDS: The Commissioner (Appeals) has disallowed the abatement of freight from the assessable value on the ground that for the period up to 28.2.2003 the said element of freight should have been shown separately in invoices. He has relied upon provisions of valuation rules (Rule 5) to come to the conclusion that price should have been shown separately in the invoices if abatement is to be claimed. We notice from a reading of Rule 5 of the Valuation Rules as they existed till 28.2.2003 that the condition for showing separately the freight in the invoices for such excisable g....
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.... the buyer claims the same or is eligible for the same, the said discount is claimed as deduction from the price. The transaction value under section 4 of the Act refers to price paid or payable for the goods removed. It is not the case of the department that whomsoever is not eligible for the discount is asked to pay back the same by the appellant through debit notes. In other words, once the cash discount is allowed in the invoices, irrespective of the eligibility to the said discount, if any, of the buyer, same is passed on in the invoice itself. Therefore, the valuation provision read with the rules would not envisage rejection of such discounts when the same is not recovered later by the Manufacturer. The buyer based on the net price charged in the invoices, pays the amount to the Manufacturer and that becomes the transaction value. Therefore, there is no question of rejecting the benefit of abatement of such discount on the ground that the same is not actually passed on to the buyer. In the following decisions, the Tribunal in Larger Bench and other decisions had held that cash discount is abatable irrespective of the fact whether it is availed by the buyer or not. (i....
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....le High Court's order. Accordingly, we hold that the appellants are eligible for deduction of these charges. (a) We find that the appellant had resorted to provisional assessment at the time of clearance of the goods to the dealers and claimed abatement of the said charges and did not pay duty on the same. Therefore, when no duty was paid, initially in view of the provisional assessment, the question of issuing credit notes, including the duty amount on such charges, never arose. The Commissioner (Appeals) has not applied the facts of the case to the issue in question. For the reasons cited above, we do not accept the Commissioner's findings on the said issue. 3. Plea regarding proper finalization of provisional assessment based upon proper computation of assessable value, taking into account the abatement claimed and the short levy/excess levy involved. We find that though this plea has been raised in the Grounds of Appeal, there has been no findings either in the impugned Order in Appeal or in the Order in Original. While finalizing the assessment, the impugned orders do not arrive at the value of each Motorcycle/Moped after taking into account all the abatements allowe....