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2015 (2) TMI 469 - CESTAT NEW DELHIValuation - Denial of the deduction of trade discount and turnover discount - Penalty u/s 11AC - ground on which the deductions of these discounts has been disallowed is that the appellant had not intimated to the Department about the discount which they intended to passed on through credit notes, after the sales through depot and they have not resorted provisional assessment - Held that:- Grounds on which the deduction of the discounts passed on through credit notes has been disallowed are totally wrong. In terms of the Apex Court s judgment in the case of Union of India and Ors. vs. Bombay Tyre International 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 by credit notes and not shown in the invoices 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.. The penalty under Section 11AC cannot be imposed when the amount of Cenvat credit wrongly taken or duty short paid on being pointed out was paid forthwith alongwith interest and intimation in this regard was given to the Department and such short payment of duty/wrong availment of credit is not deliberate with intent to evade the duty, for which in this case, there is no evidence. In view of this, we hold that penalty of ₹ 4,42,534/- is also not sustainable. - impugned order is set aside. - However, extension of stay denied - Decided partly in favour of assessee.
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