TMI Blog2015 (2) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. reported in [1983 (10) TMI 51 - SUPREME COURT OF INDIA] a trade discount would be admissible for deduction if it is known prior to clearance of the goods and for permitting the deduction of trade discount, it is not material that it must be given at the time of sale and the deduction would be permissible even if the trade discount is quantified after the sale and is given subsequently. It is seen that the Tribunal in the case of Bipico Industries (Tools) Pvt. Ltd. vs. CCE & CUS, Vapi (2009 (6) TMI 772 - CESTAT, AHMEDABAD), CCE, Coimbatore vs. Texmo Industries (2008 (2) TMI 105 - CESTAT, CHENNAI) and Gujarat Borosil Ltd. vs. CCE, Surat II (2009 (12) TMI 379 - CESTAT, AHMEDABAD) has taken same view holding that the discounts passed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant were giving various discounts trade discounts, that is the discounts in respect of sales from depots located in different regions, quantity discount and turnover discounts. At the time of clearance from the factory, the goods were being cleared on payment of duty on a price (called transfer price) after availing the maximum discount and, thereafter, when the goods were sold from the depots and the exact quantum of discount passed on was known, and if the discount availed at the time of clearance from the factory was found to be more than the discount actually given, the differential duty was being paid. In fact Annexure II-C of the ER-1 return for the month of March 2002 placed on record, carries an endorsement that in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the appellant have given the after sale discounts, has been established, that the only ground on which the discount has been disallowed is that the assessee did not intimate to the Department about the discount, which they passed on and also they did not resorted to provisional assessment for the clearances effected from the factory, that this ground for disallowing of the discount is totally wrong, that Tribunal in the case of Bipico Industries (Tools) Pvt. Ltd. vs. CCE CUS, Vapi reported in 2009 (247) E.L.T. 811 (Tri. Ahmd.) has relying upon its earlier decision in the case of CCE, Coimbatore vs. Texmo Industries reported in 2008 (226) E.L.T. 375 (Tri. Chennai) has held that the discounts not given in the invoices, but subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AC, which is not correct. 4. Shri R.K. Grover, the learned DR, defended the impugned order by reiterating the findings of the Commissioner. 5. We have considered the submissions from both the sides and perused the records. 6. The first point of dispute is the duty demand of ₹ 35,62,555/- by denial of the deduction of trade discount and turnover discount which had been passed on to the customers through credit notes. The fact that these discounts were known prior to the clearance of the goods is not in dispute. The Commissioner, in fact, has allowed the deduction of these discounts wherever these discounts had been passed on to the customers in the invoices. He has disallowed the discounts only in those cases where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be admissible. In view of this, the impugned order confirming the duty demand of ₹ 35,62,555/- alongwith interest and imposing penalty of equivalent amount on the appellant under Section 11AC is not sustainable and is set aside. 7. As regards short payment of duty of ₹ 1,891/- in respect of some clearances and are wrong availment of Cenvat credit of ₹ 4,41,633/- the duty/Cenvat credit demands are not disputed and have already been paid by the appellant much before the issue of the show cause notice. In respect of these amounts, it is only the imposition of equivalent penalty under Section 11AC which is being disputed on the ground that these amounts had been paid as soon as the short payment of duty/wrong availme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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