TMI Blog2019 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... of certain fees by the respondent to BEST. No investigation has been conducted by the revenue to establish the allegation that the discount offered by the respondent to BEST was in lieu of all infrastructural facilities extended by BEST to the respondent. There is no reason to interfere with the aforesaid finding of the Commissioner (Appeals) as in their appeal before this forum also, no contrary evidence has been placed by revenue - appeal dismissed - decided against Revenue. - Excise Appeal No. 993 of 2011 - A/86608/2019 - Dated:- 13-9-2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Sanjay Hasija, Supdt. Auth. Representative for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, on the basis of EA 2000 audit report, issued a show cause notice to the appellant on 8th July 2010 demanding differential duty of ₹ 22,84,040/-for the period from June 2000 to April 2010 alleging that the discount passed by the respondent to BEST as per agreement dated 21.12.2006 (revised by the amendment agreement dated 21.12.2009 effective from 16.6.2009) @ 0.70 per kg is in the nature of additional consideration, hence recoverable with interest and penalty. On adjudication the demand was confirmed with interest and penalty. Aggrieved by the said order the respondent filed an appeal before the Ld. Commissioner (Appeals) who in turn allowed their appeal. Hence, the revenue is in appeal. 3. The learned AR for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umers, commercial and small industrial consumers and the second stream is supply of CNG for use as fuel for vehicles. The CNG is dispensed to vehicles through dispensers which is the capital equipment installed by the respondents along with compressor at various delivery stations known as filling stations. BEST had approached the respondent to provide CNG filling facility inside its depots in order to avoid dry run of its buses and accordingly they entered into an agreement dated 21st Dec. 2006 with BEST for sale of CNG for captive consumption exclusively for Best buses. As per clause 2.11 of the said agreement it is agreed that both parties would examine the feasibility of filling CNG to outside vehicles (other than BEST vehicles) and wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement dated 21.12.2006, she has submitted that the said allegation is without any basis since the demand has been raised for the period from June 2009 to April 2010, that is much after the said agreement. 6. She has further submitted that similar trade discounts given by the respondent to oil marketing companies (OMC) had been disallowed by the Department as a deduction in arriving at the assessable value. However, when Respondent challenged the same, this Tribunal vide judgment dated 24.8.2016 reported as 2017 (348) ELT 175(T) held that the transaction between the respondent and the OMCs are on principal to principal basis and since the OMCs were bulk buyers, accordingly given higher discounts and in absence of any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eu of facilities to dispense the CNG extended by BEST to the respondent. We do not find merit in the allegation of the Department in as much by the previous agreement dated 21.12.2006, both sides agreed that the respondent would pass a discount @0.60/-to BEST, which the Department never disputed even though under the said agreement necessary infrastructure for dispensing CNG at the premises of BEST had been provided to the respondent by BEST. The revenue disputed the correctness of the said discount only after the agreement dated 12.05.2008 was executed allowing the respondent to sale CNG to outside vehicles. In our opinion, the second agreement dated 12th May 2008 is a separate transaction between the respondent and BEST for allowing outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises, (ii) as per agreement dated 21.12.2006, these were provided free of cost, (iii) however, actually for this, the appellants allowed a trade discount of ₹ 0.70 per kg to BEST. It is not clear whether the respondent meant the giving of discount as a flow back of additional consideration or the providing of facilities by BEST was an additional consideration, received by the appellants. Taking up the conclusions of the resp0ondent the discussion, I find that as already discussed above the agreement dated 21.12.20006, was for setting up dispensing stations, within BEST premises, for filling up BEST vehicles exclusively, for which the facilities were provided by BEST free of cost. Even accepting the department s stand for acade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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