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2019 (12) TMI 948 - AT - CustomsValuation - Eligibility for ‘Franchise Discount’ and ‘Quantity discount’ on the imports of rock phosphate made by them at karwar port - appellants submit that the discounts are genuine; discounts under any name are to be allowed and that they have not paid over and above the contracted price - extended period of limitation - HELD THAT:- In respect of quantity rebate there is a condition that the discount is upon lifting and payment of certain quantity and that JPMC would release this amount to BILT along with the settlement of dispatch/demurrage of last shipment. We find that the dispute is with the Vessel MV Azizia-II; department claims that there are two invoices for the Vessel and they were showing different prices; the appellants contends that out of the 6800 MT, 5000 MT belong to the earlier contract for 45000 MT which was extended to these 5000 MT by virtue of Minutes of a Meeting. The quantity discount was agreed upon by both the parties subject to fulfillment of the condition that the contracted quantity is lifted. If both the parties agree to increase the quantity available for discount even though by way of a Minutes of Meeting, holding such discount is not permissible defies any logic. We see that there is nothing significant in the e-mails transacted to show that such a quantity discount was not extended and was only shown to the Customs authorities with an intent to evade payment of duty. As long as the discount is given, in course of the international trade, and as long as there is no flow back of money from the importer to the supplier, such discounts cannot be held to be not permissible as to hold that It is not understood as to why Revenue thinks that to be eligible the discount should be only under a contract. Assessments, once made provisional, shall be provisional for all purposes; there was nothing to stop the Revenue from going through the contracts and seeking further clarification from the appellants on any of the issues. As the appellants have been continuously importing the same item at the same Port over the years, the charge of suppression of fact cannot be sustained. The appellants have paid duty as per the discharge quantity at the Port of discharge - The submissions of the appellant that sometimes they receive in excess and sometimes they receive short are plausible. Therefore, allegations based on excess receipt in the factory are not maintainable. The discounts availed by the appellants are of commercial nature and no case has been made either on the basis of evidence in the form of higher contemporaneous prices or flow back of money, we find that the discounts have to be allowed - no case is made for demand of duty - Penalty also set aside. Appeal allowed - decide in favor of appellant.
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