TaxTMI 
TaxTMI 
2016 (10) TMI 79
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.... Vehicles to their dealers at a fixed rate and allowing the quantity discount based on turnover of the said dealers. The discount proposed to the dealers is determined on the calendar year based performance on off take. On the request of the appellant herein, the assessment were provisional. The said provisional assessment were finalised; the turnover discount, adjustment towards excess and short payment and extending discount to the dealers even for non-adjustment was not granted and demand was for differential duty along with interest which was confirmed by adjudicating authority. The first appellate authority also rejected the appeals filed by the assessee; on the same reasoning. 4. Learned Counsel submits that as regards turnover discount to the dealers slab wise, it is not in dispute the said discount was made known to dealers in advance and was also passed on to them at the end of year on performance review. The lower authorities have rejected the contentions in the finalisation only on the ground the turnover discount was quantified at the end of calendar year, wherein dealer has sold the cars of previous year. As regards the first issue he would submit that deduction of ....
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....cars . v) It was observed that some of the car vehicles sold by the dealers either pertaining to prior to period 1.1.2003 for which the duty was paid by the assesse prior to the period of consideration of final assessment or pre owned by the dealers . vi) As such vehicle is not eligible for discount was shown in the annex 'A', 'B' and 'C' and accordingly SCN was issued for Rs. 33,96,142/-. vii) Demand was confirmed by O/O no 36 dated 31.3.05fr the said amount and some refunded amount of Rs. 38,225/ - was ordered for recovery saying that there is no provision to adjust the amount in C.Ex provisions .Refund can be claimed only under 11B of CEA 1944. viii) Commissioner (Appeals) upheld the order of revenue and allowed the revenue's appeal on the following grounds. a) Party is required to file a separate refund application under sec 11 b of the CEA '44. b) Duty burden has already passed to the customer and it is incorrect to adjust the excess duty short paid even when he was of the view that the duty incidence has been passed to the end user and was required to credited to the welfare Fund. c....
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....h discount it will encourage the dealers to work more efficiently and get orders for cars which will benefit the dealers as well as the appellant. 8. As regards the adjustment of excess payment of duty to short payment of duty on the finalisation of the provisional assessment, we find that in the appellant s own case, as reported at [2014 (307) ELT 182 (Tri.-Mum.)] the Tribunal has held that the discount which are extended by credit notes are also eligible for deduction. We find that the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (supra) paragraph 8; after reproducing Rule 7of the Central Excise Rules, 2002 held as under. "Rule 7. Provisional assessment. - (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provis....
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....e incidence of such duty to any other person; or (b) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. If after taking into consideration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest." T....